





w •■' 



^^ ..ti, .* 




Book W^ 



LIYES 



OF 



USL 

I sop 



EMINENT ENGLISH JUDGES 



SEVENTEENTH AND EIGHTEENTH CENTURIES. 



EDITED BY 




W. N. WELSBY, Esq., M.A., 

RECORDER OF CHESTER. 



PHILADELPHIA: 

T. & J. W. JOHNSON, 197 CHESNUT STREET. 
1846. 






PHILADELPHIA: 
KING AND BAIRD, PRINTERS, 



TO 



THE RIGHT HON'OURABLE BAROX PARKE 



THE LEGAL PROFESSION RECOGNIZES, WITH ONE VOICE, 



THE COMBINATION OF THE HIGHEST JUDICIAL QUALlTIEjs, 



MEMOIRS OF EMINENT ENGLISH JUDGES 



ARE, WITH HIS PERMISSION, 



RESPECTFULLY DEDICATELi. 



ADVERTISEMENT. 



The Biographies which compose this Volume were 
originally published in the " Law Magazine," and were 
read, I believe, with some degree of favour. The Lives 
of Lords Nottingham, Hardwicke, Mansfield, Thurlow, 
and Ashburton were from the pen of the late Edmund 
Plunkett Burke, afterwards Chief Justice of St. Lucie, 
whose premature and melancholy death was the occasion 
of much regret to his friends and the Profession. For 
the rest I am responsible, with the exception of the me- 
moirs of Hale and Blackstone, which were by other 
hands. I have the permission of the writers to include 
them also in this Volume. The whole have been care- 
fully revised, and some inaccuracies, both of fact and of 
expression, have been corrected. 

I did not venture upon the more difficult and delicate 
task, of portraying the lives and characters of any of 
the distinguished Judges who have adorned the Bench 
and the Woolsack within the present century. It has, 
however, been well performed by my friend Mr. Town- 
send, whose Memoirs are also about to be presented to 
the public in a collected form. 

VV. N. WELSBY. 

Temple, February, 1S4G, 



CONTENTS 



Sir Matthew Hale 

Lord Keeper Whitelocke 

Lord Nottingham 

Sir John Holt 

Lord Cowper 

Lord Harcourt 

Lord Macclesfield 

Lord King 

Lord Talbot 

Lord Hardwicke 

Sir William Blackstone 

Lord Bathurst 

Lord Mansfield 

Lord Camden . 

Lord Thurlow 

Lord Ashburton 



PAGE 

9 
34 
59 
98 
112 
179 
211 
247 
2G9 
287 
333 
358 
374 
454 
487 
533 



LIYES OF 



EMINENT ENGLISH JUDGES, &c. 



SIE MATTHEW HALE, 



The life of Sir Matthew Hale is so generally known through 
the Memoir of Bishop Burnet — one of the most attractive 
among English biographies — that it is no easy matter to handle 
the same subject in a more modern fashion, without divesting it 
of some part of its merited popularity. We are therefore 
inclined to think that Dr. Williams has acted wisely in taking 
that Memoir for the nucleus of his own more extended per- 
formance,* and adding to it from various sources of information 
such matter as might give it additional interest, especially with 
members of the profession to which his hero belonged. But 
his own words will best convey an idea of the object and con- 
tents of his book : 

" Upon the Life by Burnet, the Memoir before us, as to its 
basis, rests ; but the argument is entirely new : and the whole 
increased from the 'Notes' of Baxter and Stephens, the judge's 
own manuscripts, and every other accessible source. The 
facts have been thoroughly examined, and, as much as possible, 
attended to chronologically. In addition to this, the labours 

• Memoirs of the Life, Character, and Writings of Sir Matthew 
Hale, Knight, Lord Chief Justice of England. By J. B. Williams, 
Esq., LL.D., F.S.A. London. 1835. 

2 



10 SIR MATTHEW HALE. 

of others in the same department have been freely used. 
When anything not noticed by Burnet is introduced, the 
authority is quoted; but the bishop's work is seldom formally 
referred to, every circumstance in it connected witli the judge 
being avowedly retained. It is not improbable that some per- 
sons may, for a moment, feel surprised, if not offended, that the 
style of that standard book should have been abandoned ; and 
the feeling is entitled to sympathy. At the same time it must 
be observed, that it appeared impossible to give it entire, and 
use, as it seemed desirable to use them, the materials which will 
be found in the present volume. For, had the bishop's narra- 
tive been reprinted, the new matter must have been exhibited 
separately, which would have seriously affected the arrange- 
ment; and occasioned, too, in addition to other awkwardnesses, 
intolerable repetitions. Besides which (to make no allusions, 
by way of shelter, to the criticisms of Pope or Swift upon 

Burnet as a writer) it may be anticipated that the 

offence, if it be such, will appear the more venial, when it is 
recollected that the admirers of the beautiful Memoir alluded to 
have the easiest possible means of gratification: numerous 
copies are to be obtained, particularly the one recently edited 
by Bishop Jebb ; and as that edition contains the other ' Lives' 
Burnet wrote, and wrote so well, the expectation is justified, 
that the supply will continue to be unfailing." 

We feel, too, that some apology is due from ourselves for 
recapitulating facts so generally known as those which any 
outline of the life of Sir Matthew Hale can present. It is the 
fate of lawyers, for the most part, " virum volitare per ora" 
during the brief duration of the splendid part of their life, more, 
perhaps, than any other class of men. The newspapers, the 
debates, the daily gossip of the streets, are full of their names. 
Their peculiar talents, their achievements, their public conduct, 
form the theme of innumerable conversations. The most suc- 
cessful general, in his highest flush of glory, is hardly so much 
the theme of general discourse, as the successful advocate. 
But few care to pursue the story of their lives farther than the 
surface. Their origin, their toils and disappointments, their 
generally inglorious domestic affairs, furnish little attractive 
matter for the fancy to dwell on : and, on the whole, we believe 



SIR MATTHEW HALE. 11 

that the biography of few men of note is so little generally- 
known, as that of our ablest legal characters. Sir Matthew 
Hale forms a splendid exception to this rule : because the singu- 
lar uprightness and piety of his life, which excited the admira- 
tion of his contemporaries no less than of posterity, have rendered 
interesting to the most ordinary peruser the quaint and senten- 
tious record of his thoughts and actions, which have been trans- 
mitted to us by himself and by his friendly historian. The 
times, also, in which he lived, were favourable to the develop- 
ment of those excellences, by affording even an unusual scope 
for the display of talent and the exercise of integrity. In dis- 
cussing the character of Hale, we may indeed omit the invidious 
deduction so commonly made in estimating the rank of eminent 
men : we are not obliged to say, that his virtues and conduct 
were distinguished, considering the age in which he lived. In 
any age or country, such a life would have been no common 
event, most uncommon in his own. The era of the civil wars 
was, indeed, favourable to the development of robust virtues : 
much of generosity and of resolution, much patient endurance 
and firm religious submission, were drawn forth amid the con- 
tests and sacrifices of those days. But these qualities were so 
rarely united with modesty and humility, and with a charitable 
spirit of allowance towards the defects of others — the firm 
adherent of one party could so rarely find room in his heart for 
the smallest atom of philanthropic feeling towards his opponents 
—that we scarcely know which circumstance is the most sur- 
prising : that a disposition and principles like those of Hale 
should have been nurtured amid the storms of such a season, or 
that, being such as he was, he should have been sought after by 
all parties for such high elevation, and attended there by sucli 
universal good opinions. 

Sir Matthew Hale was the only son of Robert Hale, Esq., of 
Alderley, in the county of Gloucester, where he was born on 
the 1st of November, 1609. His father had been bred to the 
bar; but, it is said, "early in life was embarrassed by scruples 
respecting the phraseology used in pleading." Time, however, 
appears to have reconciled him to the sin of enumerating ima- 
ginary enormous wrongs, and setting up supposititious debts 
to the king's exchequer, since he gave directions by his will 



12 SIR MATTHEAV HALE. 

that his son should follow the law. Matthew Hale lost both 
his parents before attaining his fifth year, and came under the 
charge of a maternal relation, Anthony Kingscot, of Kingscot, 
Esq., in Gloucestershire. The family of Kingscot (which, by 
the way, is one of the oldest in England, and still flourishes, 
where it has been settled for a long series of centuries, on lands 
of the same name) was then attached to puritanical principles : 
and the young lawyer's schoolmaster and college tutor were 
both inclined to that way of thinking, as we might judge, were 
there no evidence of the fact, by the unqualified abuse which 
Mr. Anthony Wood has lavished on their memories. From the 
latter of these gentlemen, Mr. Sedgwick, Hale derived not only 
some tincture of puritanism, but a strong fancy for military pur- 
suits. Sedgwick having been chaplain to the renowned Lord 
Vere of Tilbury, w^as engaged to follow his patron into the 
Low Countries, and Hale, at one time, was on the point of 
pursuing his fortunes. He then regarded the members of the 
legal body as "a barbarous race, and as unfit for anything 
beyond their own profession ;" and felt, no doubt, something of 
the inspiration which dictated the bold captain Alexander Rad- 
cliffe's strains ; — 

" Go tolt your cases at the fire, 
From Plowden, Perkins, Rastall, Dyer, 
Such heavy stuff does rather tire 

Than please us. 

, Tell not us of issue male, 
Of simple fee and special tail. 
Of feoffments, judgments, bills of sale, 
And leases. 

Can you discourse of hand grenadoes. 
Of sally-ports and ambuscadoes, 
Of counterscarps and palizadoes, 

And trenches 1 

Of bastions, blowing up of mines, 

Or of communication lines, 

Or can you guess the great designs 

The French has 1" 

But he was won back to the line of life for which his father 
had destined him, by an event which seldom imbues the sufferer 



SIR MATTHEW HALE. 13 

with an extra love of law — the being engaged in a suit of his 
own. His counsel, Serjeant Glanville, appears to have directed 
his attention towards those studies which he was destined so 
greatly to adorn, and to have thus decided his eventual career. 
Hale was admitted a student of Lincoln's Inn on the 8th of 
November, 1629. His application was eager and incessant: at 
one time, he says, he studied sixteen hours a day ; an excess of 
industry which he afterwards regretted, and dissuaded others 
from committing. Some such discipline, however, seems 
always to have been undergone by those who have become, 
like himself, eminent record lawyers. Nov, Selden, and 
Vaughan, in his own profession, and Archbishop Usher among 
divines, were his early friends and patrons. How soon he 
began to reap the fruit of his diligence we are not informed. 
Burnet says he was one of the counsel assigned to Lord Straf- 
ford, (in 1640). But there is no evidence of the fact in the 
accounts which we possess of the trial ; nor do we quite see on 
what grounds Dr. Williams would have his readers rely on the 
bishop's random assertion.* It is certain, however, that by this 
time he had attained a considerable rank in professional estima- 
tion, so much so as to have made his conduct, in the trying 
times which followed, matter of note and remark. His enemies 
have exercised on it that perverse ingenuity which labours to 
discover a fault, for the sake of pulling down, if possible, an 
exalted character to the ordinary level ; while his admirers, we 
cannot but think, have displayed in his defence a zeal somewhat 
disproportionate to the nugatory character of the accusations. 

The sum of Sir Matthew Hale's conduct during the civil war 
and under the Commonwealth is briefly this : that he is supposed 
to have taken the covenant in 1643; that, at all events, he con- 
tinued to practise in London under the sway of the Long Parlia- 
ment ; that he was employed as counsel, and in other public 
capacities, in some important transactions on both sides ; and 

• The reader is referred to ihe trial of Love (St. T.. vol. ii. p. 160,) 
for some allusions which are said to indicate this fact. But it will only 
be seen there that the Court reminded Mr. Hale of certain particulari- 
ties in the trials of Strafford and Laud, "which he very well knew;" 
and although Hale was certainly engaged in the latter, it is scarcely to 
be inferred from this hint that he was also employed in the former. 



14 SIR MATTHEW HALE. 

that after the king's execution he also took the " engagement," 
which the new government had substituted for the oaths of 
allegiance and supremacy, and which bound the taker to be 
" true and faithful to the Commonwealth of England, without a 
King or House of Lords." Those who look upon Sir Matthew 
Hale as a professed loyalist, zealous for the church and mon- 
archy, may have found some difllculty in framing arguments to 
defend him for these various compromises of principle ; while 
those who see no virtue but in unbending adherence to a party, 
have naturally condemned and exaggerated them. For ourselves, 
we cannot but think that the tenor of his behaviour was not only 
defensible, but, upon the principles he had adopted, strictly right. 
We do not impeach for a moment the high virtue of many of 
those who embraced either side with unqualified ardour, and 
maintained it to the exclusion of all other considerations, in good 
or ill success. But there will always be a sufficiency of such 
zealots, whenever the public mind is excited to the true party 
lemp.erature which renders it fit for all exertion and suffering in 
a favourite cause. But how greatly would the evils of such 
times be increased, were there not always some men of honour 
and principle, who do not feel it a disgrace to keep aloof from all 
fierce extremes, and to seek to alleviate and calm the excesses of 
each party when in its turn victorious. It was Hale's deliberate 
rule, to acquiesce in the government de facto, without servile 
approbation of its measures, if obnoxious to his sense of right. 
His notion of the duty of a citizen was the very reverse of that 
of the non-jurors of every revolution. He proposed the Roman 
citizen, Atticus, to himself as a model in political conduct ; and 
of course he was willing to incur the reproach to which that 
personage was subject from all classes of partisans in ancient 
Rome, who treated him as a trimmer and waiter on Providence. 
By adhering to such resolutions, Hale passed through all the 
changes of those eventful twenty years in which the period of 
his middle manhood was spent, without ever quitting his sphere 
of useful activity, and yet without being betrayed into one act of 
compliance dishonourable to a private citizen ; while many of 
those who, in later times, have designated him as a time-server, 
would} in all probability, have disgraced themselves, had they 
then lived, by the most direct and slavish acts of apostasy. But 



SIR MATTHEW HALE. 15 

the wisdom and maxims of Hale are so singularly applicable to 
the present, and to all other times of political excitement, that 
we cannot refrain from citing some of his remarks on men and 
things at the era of the Restoration, although the extract be 
somewhat long. He had seen the mischiefs of all parties, and 
the preposterous judgments which they formed of each other. 
He had seen Conservatives denounce all classes of Reformers 
alike in the vehemence of their despite, and refuse the helping 
hand when extended to them, because it had once been joined in 
fellowship with that of their enemies ; he had seen Reformers, 
frightened at the march of ultra-reform, turn round upon their 
former associates, and abuse them with such hearty and vigor- 
ous malediction as none but quondam friends are wont to em- 
ploy towards each other. He had seen these, and all the other 
extravaganzas of party perversity ; and no wonder if the mild- 
ness and equity of his judgments was a little mingled, in this 
instance, with a tone of quiet sarcasm. 

"I have observed that many of these men that have been 
most obnoxious upon the change of times, have been most for- 
ward, and foremost and busy, in the precipitating of it; and 
most impatient of any delay in it; most ambitious in discover- 
ing their desires of it. I have seen some that have been as 
great occasions of advancing our distractions as any have been 
under Heaven, or at least never contributed to it till they saw it 
could not be hindered, yet the most importunate, violent, and 
hasty in the change when it needs them not: like the men of 
Israel that first entertained a defection from the house of David, 
upon the return of things, outrunning the fidelity of the men of 
Judah, that never forsook him entirely. But tliis violent con- 
version hath most ordinarily one of tliese two interpretations, 
upon which it wilhereth ; either it is construed as a design to 

mischief and endanger that return of things ; or it is 

construed an act constrained by necessity, or of adulation and 
flattery, or of self-seeking and interest, or of a pitiful and low- 
flying policy, to cover or obliterate the memory of former 
demerits, and to scrape a share of interest in the present returns ; 
which, though it be made use of for the present advantage, yet 
it proves ineffectual for the end designed ; and commonly, such 
persons lose their interest and reputation on both sides ; and, 



16 SIR MATTHEW HALE. 

when turns arc served, the memory of iheir former disservices 
returns with more acrimony; or at least, they are laid aside as 
men that deserve no trust or confidence, by reason of their 
mutability and unfixedness, and the party which once they were 
of is sufficiently gratified and pleased with it, and so they be- 
come the objects of scorn and neglect to all parties 

" I have seen men who have been in some degree obnoxious 
upon the change of times, who, because they have not been so 
obnoxious as others, fall foul and fiercely upon that party that 
has been somewhat more obnoxious than themselves ; not con- 
sidering that thereby they give a kind of just occasion to others 
that are less obnoxious than they to use the same measure of 
severity towards them in a little while, which either doth or will 
most certainly happen ; and so that rod, whereby they have 
whipped others, is most effectually and indispensably delivered 
over from them that used it unto others, for their own correction, 
which they intended not, till all that have had any concurrence 
or concomitancy in the change have partaken in the same mea- 
sure ; at least, till it stop in the moderation of some persons ; 
for it is most certain and infallible, that, unless there be a stop, 
by moderation, in some middle parties, the animadversion against 
ofi'enders, or such as are so reputed, never ceaselh till it come to 
the most sublimated, or, as they call it, refined* interest. This 
was the walk that things had in the late desolations, both in 
ecclesiastical and civil matters. First, the animadversion began 
by the presbyterian interest, upon the absolute royalist and epis- 
copal man ; the independent interest, that ran along in that 
severity, and thought the presbyterian not sufficiently contrary 
to the royal interest, is as severe upon the presbyterian ; the 
anabaptists, and other highflyers, think that went not high 
enough, but had a secret inclination to monarchy, and, though in 
another line, fly upon the independent ; and when things were at 
the most refined and sublimed temper, they begin to return again, 
much by the same steps they went ; and every man, though 
subject to something that another may easily make a guilt, falls 
sharply upon another, which, it may be, hath exceeded, not con- 
sidering that his turn may be next. Thus, he that hath sworn 

♦ The ''royalistes quand meme" of the French Restoration. 



SIR MATTHEW HALE. 17 

fealty to the late Protector falls sharply upon him that abjured : 
he that took the engagement falls as sharply upon both the 
former ; he that took the covenant only is ready to fall upon the 
three former ; and he that never took any is ready to inveigh as 
bitterly against the covenanter ; he that acted regularly under 
the Protector or Commonwealth, falls generally upon the high- 
court-of-justice men ; he that acted under the Long Parliament 
with the same severity inveighs against both the former ; and, 
perchance, invites thereby the spirits of those men that acted 
purely on the royal account to fall as sharply upon all three ; 
men looking still, generally, upon that whereof they are inno- 
cent, and not considering themselves in that whereof they are 
guilty, are so thought by others." 

We must add the following noble consolation, especially ap- 
plicable to those whose consciences afflict them on account of 
the ill result of public designs, to which they have contributed 
with the best and purest intentions. 

"Doth thy conscience bear thee witness, that even in the 
worst of times thy actions have been good, and for the service 
of the unquestionable interest of the nation ? Be not so vain as 
to seek thine own applause, lest thou be disappointed ; but yet 
scorn to disown them, notwithstanding they be prejudicated, or 
misinterpreted. Content thyself with the serenity of thine own 
conscience, and the testimony it gives to thine integrity ; and 
value not the descants of men. Good actions, happening in a 
time when there were many evil, may, in the tumult and hurry 
of a change, undergo the same, or very little better, interpreta- 
tion than the worst actions. The indignation against the latter, 
or the times wherein they were acted, may cover the best actions 
and intentions with prejudice and censure. But when things 
and persons grow a little calmer, they may be restored to their 
due estimate. Wait, therefore, with patience, upon the great 
searcher and judge of hearts, who, in his due time, will 'bring 
forth thy righteousness as the noon-day ;' and, in the meantime, 
content thyself with the inward serenity of thy own conscience, 
in the midst of the mistakes and prejudices of others." 

At the same time it must be admitted, that, although Hale was 
in principle a royalist, and had a strong professional leaning to 
the established practice of the constitution, he probably had no 



18 SIR MATTHEW HALE. 

vehement feelings of loyalty to suppress, when he acquiesced in 
the sway of the revolutionary party. His early education par- 
took, as we have seen, of a puritanical cast. Although a sup- 
porter of episcopacy, lie never seems to have been enthusiastic 
in its cause. Even in the high-flying times of the Restoration, 
he never assented to the fashionable doctrine, that any form of 
church or secular government was of divine ordination ; although 
his friend Baxter candidly admits — " I must say that he was of 
opinion that the wealth and honour of the bishops was conve- 
nient, to enable them the better to relieve the poor, and rescue 
the inferior clergy from oppression, and to keep up the honour 
of religion in the world." In truth, pious and excellent as he 
was, his piety was rather of a domestic, than a congregational 
cast. He seems always to have been rather anxious to exclude, 
than to dwell upon the consideration of sectarian differences, at 
least between Protestants. And we may well suppose that, 
before the overthrow of church and state by the fanatical party, 
his eyes were less open to the levelling nature of their tenets, 
than after experience had taught him the close connexion between 
the two. Hence it is no disparagement to his uprightness, that 
he took no decided part in favour of royalty in the beginning of 
the troubles ; although it has been constantly thrown in his teeth 
by Tory writers, who, on other occasions, are accustomed to 
appeal to his authority against the sweeping innovations of later 
times. 

With respect to the important political causes in which Hale 
is said to have been engaged during that turbulent era, it is sin- 
gular how much uncertainty rests on this part of his biography. 
We have seen that there is no direct evidence of his having been 
counsel for Lord Strafford. He certainly was assigned to defend 
Archbishop Laud, and the argument in the State Trials was 
thought by Lord Chancellor Finch to have been his, and not 
that of his leader, Mr. Heme — a gentleman whose forte appears 
rather to have lain in nisi prius repartee than in solemn argu- 
ment. Hale was retained, as we have said, for the Parliament, 
in the negotiations for the surrender of Oxford ; and again for 
the University of Oxford, against the Parliament, on the question 
of the Visitation. He was also, according to Burnet, assigned 
counsel to Charles L on his trial ; and the report had passed 



SIR MATTHEW HALE. 19 

unquestioned, until the recent editor of his works, Mr. Thirl- 
wall, raised a doubt respecting its authenticity. It is certainly 
singular enough that there should be no more authentic record 
of so important an event in his life. Although it is true, that, 
in consequence of the king's refusal to acknowledge the juris- 
diction of the court, no counsel could be heard in his behalf, yet 
it seems strange, that, in the great minuteness of detail with 
which all the circumstance and show of that great tragedy have 
been transmitted to us, the name of a person selected to play so 
important a part should have been wholly forgotten, and that 
the fact should only be known through a memoir written thirty 
years afterwards. Mr. Serjeant Runnington, however, in the 
life prefixed to his edition of Hale's History of the Common 
Law, not only admits the truth of the story, but conjectures it 
was Hale who furnished his illustrious client with the line of 
defence which he actually adopted, namely, to deny the jurisdic- 
tion of the Court. There is some plausibility in the supposition. 
Certainly a course more dignified, and at the same time more 
ingenious, could not have been suggested ; for it must be borne 
in mind, that, as Charles came to the bar knowing his death 
pre-determined, the object of his defence was, not to save his 
life, but to set himself right in the eyes of <he existing genera- 
tion and of posterity : by debating questions of fact, he would 
have given too clear an advantage to his opponents. But it* 
seems so bold and uncompromising a line, as no lawyer, with a 
mind less capacious and free from professional obliquities than 
that of Hale, would have ventured to mark out for him. All 
these facts prove the high reputation of Hale, not only in his 
calling, but in his private character. But, inasmuch as he ap- 
pears on the most important of these occasions to have acted 
under the appointment of the judge, i. e. in those times, of the 
prosecuting party, rather than under the free choice of the 
defendant, they surely do not show that he was looked upon by 
the royalist party as an adherent to their own persuasion, or as 
a sturdy opponent of the then existing government. But the 
death of Charles, and the abrogation of monarchy, undoubtedly 
weighed heavily on his mind. He is said to have concealed his 
unfinished manuscripts of the " Pleas of the Crown" behind the 
wainscoting of his study, with the remark, that " there would be 



20 SIR MATTHEW HALE. 

no more occasion for them until the King was restored to his 
right." He afterwards appeared as counsel for the Duke of 
Hamilton, Lord Holland, Lords Capel and Craven ; and in the 
last of these cases he drew down on himself the threats of the 
Attorney-General for the Commonwealth, which he met with 
becoming resolution. But of all his defences, that of Christopher 
Love, a young Presbyterian minister, arraigned of high treason 
by Cromwell's council, in 1651, was the most remarkable ; and 
although his client on that occasion, like all his former distin- 
guished clients, had the misfortune to be executed, he suffered 
with all the satisfaction of having had his case admirably argued 
on the question of law. 

On the 16th December, 1653, Cromwell was installed Pro- 
tector. Hale was the only new judge made on his accession to 
this dignity. But there is some obscurity about the precise time 
of his elevation to the bench of the Common Pleas, and also of 
his taking the preceding degree of Serjeant, which must have 
been after the death of Charles I. ; for Sidertin mentions him 
among the fourteen Serjeants to whom fresh patents were granted 
at the Restoration, their first creation being presumed invalid. 
They appeared and were sworn on the 22nd June, 1660. " Et 
le prochein jour," adds the reporter, with perceptible exultation, 
" ils vient en lour veux Serjeants robes, et count en le common 
Banke en Francois." The twelve years' dream of new institu- 
tions had passed away, and the old gowns and Norman French 
came back in the train of Astraea Redux. According to a well- 
known anecdote, Hale was for some time reluctant to accept the 
Protector's commission, and plainly told him that he was not 
satisfied of his authority : to which Cromwell is said to have 
replied, "If you will not let me govern by red gowns, I will do 
it by red coats." Mr. Serjeant Runnington, in recounting this 
story, adds a truly professional "quaere." " I doubt," he says, 
" whether the army had at this time any regular uniform, and 
if they had, that it was scarlet." But the learned Serjeant's 
doubt is unfounded. Many of Cromwell's regiments certainly 
wore red coats; although regular uniform was not introduced 
into the French army until 1670, nor into the English until a 
somewhat later period. 

Not only did Hale accept his commission with unfeigned re- 



SIR MATTHEW HALE. 21 

luctance, but, as is well dlinown, after a short time his scruples 
prevented him from sitting on the crown side of his Court. We 
are not aware that his writings contain any explanation of the 
nature of the doubts which beset him on this occasion. If he 
was convinced that the necessities of his Gountry required men 
not to shrink from executing justice under an usurped authority, 
it is difficult to understand why he should have thought that he 
was not as much called upon to repress offences, as to decide 
civil suits. On the whole we cannot but think, with Mr. Ros- 
coe, (" Lives of Eminent British Lawyers"), that it would have 
been a manlier course had he acted otherwise. We can scarcely 
agree with Dr. AVilliams in supposing that a few vexatious ob- 
stacles, which he is said to have encountered, in administering 
criminal justice, from military officers and other agents of Crom- 
well's government, could at all have influenced his decision. Such 
interruptions could not but have been expected, under a govern- 
ment just formed out of anarchy ; and the Protector was far too 
wise and too high-minded to countenance any material inter- 
ference with the ordinary course of the law. State offences 
stood upon a different fooling ; and with these, after his open 
avowal of dissatisfaction with the Protector's authority, he could 
not reasonably be expected to intermeddle. 

In 1654 Hale was chosen one of the five knights of the shire 
for the county of Gloucester in Cromwell's reformed Parlia- 
ment. This Parliament only sat five months. Hale appears to 
have taken a part of some consequence in its debates. He 
opposed, with success, the project of the levellers, to destroy all 
the records in the Tower, as part of their scheme for settling the 
affairs of the nation on a new basis. In the great discussion 
respecting the new constitution he took part by suggesting that 
the whole military power should be left, for the present, in the 
Protector's hands, but his legislative powers hmited by instruc- 
tions from Parliament, according to the suggestions of the re- 
publican party. It is difficult to see how it could have been 
expected that an individual, entrusted with the unlimited power 
of the sword, should have submitted to such restrictions as his 
enemies were pleased to impose on his civil authority; but 
probably the motion was only made as a temporary expedient, 
to avoid a collision of parties and the consequent dissolution of 



22 SIR MATTHEW HALE. 

the assembly. In the next Parliament (summoned Sept. 1656) 
Hale did not serve ; but in the following year he was summoned, 
as a judge, to sit in Cromwell's new upper house. On the 
death of the Protector, in 1G58, Hale acted definitely on those 
principles which he had partially adopted before ; he refused 
Richard Cromwell's commission. In the new Parliament of 
1G58 he represented the University of Oxford, which learned 
body sought likewise to secure his services in the Convention 
Parliament of 1660 ; but he preferred the offered representation 
of his native county. It is one of the most honourably traits of 
his public life, that even in the first burst of loyalty, at the period 
of the Restoration, when the whole nation was hurrying to lay 
itself and its hard-won liberties at the feet of its recovered mon- 
arch, he made a struggle, although without success, to impose 
conditions on Charles II. ; but his motion was rejected, and 
chiefly through the influence of Monk himself. His first public 
employment under the restored government was one to which 
the temper both of his head and heart was admirably adapted, as 
well as inclined. He was nominated one of the committee on 
the Act of Indemnity, which was framed and carried through 
the lower house by him. Charles was, of course, compelled to 
this act of grace, which was indispensable for the support of his 
recovered authority. But at a time when the country was pos- 
sessed with a blind animosity against all parties concerned in the 
late events, private enmities and public prejudices threw such 
powerful impediments in the way even of this necessary enact- 
ment, that it required both moderation and firmness to undertake 
the management of its details in such an assembly as the Par- 
liament of 1660. It was not without personal solicitation on 
the part of the King, that the reluctance of the House of Lords 
to pass it was vanquished. 

Hale was included in the special commission for the trial of 
the regicides. On the 7th November, 1660, he was created 
Chief Baron, on the recommendation of Lord Clarendon, suc- 
ceeding Sir Orlando Bridgman, who w^as removed to the Com- 
mon Pleas. There is a paper in Hargrave's Law Tracts, 
containing twelve reasons, drawn up by Hale himself, for his 
unwillingness to accept the proffered dignity. Among these is 
his poverty; — *' my estate not being above 500/. per annum, 



SIR MATTHEW HALE. 23 

six children unprovided for, and a debt of 1000/. lying upon 
me." The situation of a judge must indeed have afforded 
much temptation, in those times, to a needy man, to deviate 
from the path of honesty ; the emoluments consisting almost 
entirely of fees, and large opportunities, of increasing them 
by fraudulent practices being thrown in his way. On this 
account some of Sir Matthew Hale's scruples, which have 
been ridiculed as savouring of puritanical rigour, have always 
appeared to us founded in solid considerations of public advan- 
tage. He refused, for example, to try the cause of a country 
gentleman, who had made him the ordinary circuit present of a 
buck; and, on the western circuit, made his servant pay for 
the regular offering of six sugar loaves from the Dean and 
Chapter of Salisbury, when they were parties to a suit in his 
court. These punctilios were undoubtedly unnecessary, had the 
judicial ermine been as unsullied in those days as now: but in 
times when it was but too notorious that the favour of tribunals 
might possibly be a purchaseable commodity, a lilile ostentation 
of integrity may not have been unserviceable to raise the char- 
acter of justice in the estimation of the commonalty. The 
judicial demeanour, like the judicial robe, is not to be estimated 
merely by its importance in the eyes of intelligent men, or 
ridiculed because its value is not intrinsic, but adventitious. 
Both are in a sense, disguises; but it is of some consequence 
that both should be worn, until the utilitarian millennium shall 
arrive at last. 

A more dignified objection, on Hale's part, to accepting the 
judicial office, than that of poverty, was his consciousness that 
his high personal and professional authority might be of still 
greater service to the public, if unfettered by any employment, 
however honourable. Some others of his twelve reasons we can 
scarcely imagine him to have propounded in earnest : as where 
he says, " I have had the perusal of most of the considerable 
titles and questions in law that are now on foot in England, or 
that are likely to grow into controversy within a short time ; and 
it is not so fit for me, that am pre-engaged in opinion, to have 
these cases fall under my judgment as a judge, .as I need must 
either upon trials or judgment." Surely he cannot have been 
of opinion that men in large practice were, from that very cir- 



24 SIR MATTHEW HALE. 

cumstancc, unfit candidates for the bench. And when he sums 
up his considerations by wishing that if he is forced to accept an 
office, "it maybe the lowest place that may be, that I may avoid 
envy : one of bis majesty's counsel in ordinary, or, at most, the 
place of a puisne judge in the Common Pleas, would suit me 
best" — it is difficult not to suspect that the cloak of affected 
humility was occasionally assumed even by the most upright and 
excellent men of his time and order. 

In 1644 occurred the famous trial of Rose Cullender and Amy 
Duny, for witchcraft, before Sir Matthew Hale, at the Suffolk 
Assizes. Almost every man of public notoriety appears destined, 
in some one or more acts of his career, to commit such a grand 
mistake as shall afford a constant subject of ridicule or reproach 
against him, the memory of which becomes so intimately con- 
nected with his name, that it rises up, like an envious accusing 
spirit, whenever he is mentioned with eulogy. The fate of 
these victims is, in Sir Matthew Hale's life, what that of Andie 
is in the life of Washington, and that of D'Enghien in the life of 
Buonaparte, — the chapter to which the reader turns with most 
exultation or with most regret, according as he is in the vein to 
depreciate or exalt the character of his subject. It is no small 
praise to say, that Hale's enemies have no more serious ground 
of accusation than what is afforded by this melancholy error. 
On the other hand, he must not stand wholly excused, as his 
biographer seems to expect, on the common argument that he 
did but act in accordance with the uniform belief of his country- 
men. The hateful spirit of witch-persecution was wearing out 
among the people, and had already lost nearly all sympathy 
among educated men, when this judgment was pronounced. 
Although Holt was the first who ventured to direct juries to 
acquit in charges of witchcraft on the ground of their absurdity, 
yet there is every reason to suppose that long before his time 
they were discouraged by enlightened judges : although some 
might give way from weakness, others from a sense of the im- 
portance of upholding even erroneous law, and others, as Roger 
North sensibly observes respecting his brother the Lord Keeper, 
from feeling that in summing up in favour of a prisoner, they fre- 
quently caused him to run a greater risk, by running counter to 
the obstinate prejudices of juries. But Hale reflected with per- 



SIR MATTHEW HALE. 25 

feet satisfaction on the judgment he had pronounced, which 
speaks ill for his enlightenment, although well for his honesty. 
He made it the subject of a written meditation " concerning the 
mercy of God in preserving us from the malice and power of 
evil angels." It is going rather too far to say, with Dr. Wil- 
liams, that his opinions agreed, even then, with those " of the 
great bulk, not to say the most eminent, learned, and pious of 
mankind." We should rather attribute this lamentable error in 
part to his peculiar religious education. For this superstition 
prevailed with the greatest malignity among the strictest of the 
sectarians : witness the witch-persecutions under Cromwell, and 
among the enthusiasts of New England. 

The business in the Court of Exchequer increased greatly, and 
its decisions acquired high authority, under the presidency of 
Hale. It was while Chief Baron that he sat at Clifford's Inn, 
under the commission to settle disputes between landlord and 
tenant, &c., after the Fire of London. In 1671 he was made 
Lord Chief Justice of the Court of King's Bench, on the death 
of Sir John Keyling. In this high office his diligence and his 
intrepid rectitude WTre even more distinguished than before, and 
the influence and public authority of his name more widely 
diffused. His judicial conduct throughout exhibited the same 
distinctive features. He seems to have acted constantly under 
the impression that his office was a part to be played not only 
with integrity, but with minute attention to certain peculiarities 
which he deemed requisite in conduct and demeanour. Thus 
his fear lest justice might be thought to favour the rich, sometimes 
led him to assume a tone and manner which occasioned the 
report that he was unjustly partial to the poorer suitor. He was 
accused of courting popularity, by exhibiting a leaning against 
the Crown in matters wherein it was interested. But when we 
remember the rampant servility of so many judges in the reign 
of Charles the Second, and the voluntary prostration of the man- 
liest intellects on the Bench under Court influence, a little affec- 
tation on the other side may surely have been not without use in 
reconciling the people to the administration of justice. So again, 
there was a semblance of severity, such as himself would have 
called "a personated anger," in some of his denunciations from 
the tribunal, especially against the malversations of persons in 

3 



26 SIR MATTHEW HALE. 

office, which may occasionally have appeared almost theatrical 
in so staid a personage. But in these, as well as the other 
peculiarities of his judicial demeanour, it is never to be forgotten 
that the extreme, towards which he appeared to lean, was the 
very opposite of that towards which his contemporary judges 
exhibited so manifest an inclination. 

In the prejudiced narrative of Roger North, who seems to 
have been divided between his dislike of Hale's person and 
politics and his admiration of his high character, this peculiarity 
of the great judge has been exaggerated into an obstinate par- 
tiality towards those opposed to the Court, and a timid subjec- 
tion to popular clamour. North's observations are very often 
sensible and judicious in themselves, even when his apphcation 
of them to individual cases is most distorted by his predilections 
and animosities. On this occasion they are worth citing. " He 
put on," he says, "the show of much valour, as if the danger 
seemed to lie on that side from whence either the loss of his 
place (of which he really made no great account) or some more 
violent, or, as they pretended, arbitrary infliction might fall on 
him. Whereas, in truth, that side was safe, as he must needs 
know, and that all real danger to a judge was from the impetu- 
ous fury of a rabble, who have as little sense or discretion as 
justice ; and from the House of Commons, who seldom want 
their wills, and, for the most part, with the power of the Crown, 

obtain them But it is pleasant to consider that this man's 

not fearing the Court was accounted valour ; that is, by the 
populace, who never accounted his fear of themselves to have 
been mere timidity." There is both shrewdness and truth in 
the general purport of these remarks, which will apply to many 
seekers of popularity, not on the Bench only, but in other situa- 
tions, in times when prerogative is low, and the democratic ele- 
ment flourishes. But in the age which saw Scroggs, Jefleries, 
and Saunders on the Bench, it will not be difficult to decide on 
"which side the greatest danger lay ; and whether Hale's leaning, 
if any, was not towards the safer extreme. 

In the externals of public life he was perhaps a little too 
unostentatious ; and he hated ostentation in others. He had an 
aversion, like some judges in our days, towards fashionable 
novelties of costume, and disliked to see them in his court. " The 



SIR MATTHEW HALE. 21 

sight of students in long periwigs, or attornies with swords, was 
known to be so offensive to him, as to induce those who loved 
such things to avoid them when they waited upon him, in order 
to escape reproof." One practice of his, if correctly reported, 
would scarcely have suited the more earnest character and larger 
amount of business in modern times. It appears that he used to 
encourage long arguments on points of law, and hold a kind of 
debate with counsel, " to all imaginable advantage to the stu- 
dents." His manner on the Bench seems to have been rather 
easy than dignified on ordinary occasions ; and his speech habi- 
tually so low and indistinct, as to occasion some difficulty to his 
hearers. We must add as the only recorded characteristic of his 
personal demeanour, that his favourite attitude, when delivering 
one of his brief judicial addresses from the Bench, was that of 
*' putting his thumbs in his girdle." 

We have already alluded to that amusing scandal-monger 
Roger North's charge against him, of subserviency to popular 
clamour, and partiality shown towards puritans and non-con- 
formists in the discharge of high duties. These he has illustrated 
by remarks on several cases, which he appears to have taken 
from his brother the Lord Keeper's common-place book, who 
seems to have indulged his party grudge against the illustrious 
magistrate by taking notes of all such decisions as displeased 
him. Many of these, however, cannot well have furnished any 
weighty imputation against him, inasmuch as North honestly 
confesses that he cannot find out why the note was taken. 
Others of these comments, again, reflect upon him for those 
parts of his conduct which in modern estimation merit the highest 
eulogy ; for example, the unconstitutional practice of fining jury- 
men for verdicts which the Court held to be against evidence, 
was effectually checked by Hale, when Chief Baron, staying 
process whenever such fines had been estreated into the Exche- 
quer ; an innovation which North denounces as against law, and 
subversive of order. Hale, however, expressly says, that he 
took this course with the concurrence of his brethren. But the 
two cases in respect of which North presses his accusation with 
the greatest zeal, are Cutts v. Pickering, and Soane v. Barnardis- 
ton, and the circumstances do appear to give some colour to the 
suspicion, that the judge's uprightness may have been a little 



28 SIR IMATTIIEW HALE. 

occasionally warped by the aversion which he had certainly 
conceived to the conduct of the Court and its partisans. In the 
first of these cases, a Puritan gentleman of the name of Picker- 
ing, the defendant, lay under the imputation of having effected 
an erasure in a will ; and although Hale was strong in his favour, 
the jury by their finding seem to have believed the charge. The 
latter was an action arising out of the following circumstances. 
Lord Huntingtower and Sir Samuel Barnardiston were candi- 
dates for the representation of Essex ; the former a Tory, the 
latter at that time a zealous Whig. Soane was the sheriff; a 
.weak, good-natured man of small estate, according to North, 
and a relation of Barnardiston. At the election, a Whig mob of 
bludgeon-men (according to the impartial Roger) assaulted the 
innocent Tories, broke open the polling booths, and impeded the 
election. The sheriff was much perplexed to know how to pro- 
ceed ; at length, by the advice of some of Lord Huntingtower's 
friends, he resolved " the middle course to steer,'' and made a 
double return. Afterwards, Barnardiston, having been seated 
by a committee, brought his action on the case against the 
sheriff for the damage accruing to him by the prosecution of his 
claim ; and took care, according to North, to have it tried by a 
Middlesex jury, and before Sir Matthew Hale. The correct- 
ness of the form of action was much disputed ; and, it being 
adjourned for trial. Hale made of it what the lawyers then called 
'* a table case," that is, he consulted his brethren and the Ser- 
jeants about it, at dinner in Serjeants' Inn Hall ; " and, as his 
way was, to his questions he annexed his reasons before he took 
their answers ; for his reasons might possibly lead them into his 
opinion ; and then his sentence in Court had been adorned with 
the adjunct of the opinions of the Serjeants' Bench ; . . . but, 
upon the proof, divers of the other judges and Serjeants were of 
an opinion different from his ; and some doubted, and thought 
it a case that deserved to be better considered ; and very few 
were clear with him. Upon this disappointment he thought fit 
to slight them all, and made no more words about it ; else, their 
opinions had been quoted in Court, or at least put under a pre- 
judice against a writ of error should come ; of which Hale had 
a prophetic presight." The trial came on ; and, exclaims North 
in a fine fit of enthusiasm, " a stout trial it was : well-feed coun- 



SIR MATTHEW HALE. 29 

sel, willing witnesses, and zeal of parties, failed not to raake the 
most of the pretensions on both sides. The jury, under Hale's 
direction, found for the plaintiff, and moreover gave 800/. damages ; 
a sum reckoned so enormous, that the judge himself who had 
done the mischief, according to North, looked "pensive" at 
hearing it announced. However, the cause was brought on error 
into the Exchequer chamber ; and the event was regarded almost 
as a trial of strength between the parties. The non-conformists 
mustered strong to hear the judgment. " A strange sort of people 
came there," says North, " whose like I never saw anywhere 
else ; odd, stiff figures," whose errand was partly to see if their 
friend was likely to get his money, and partly to observe, and, 
if possible, overawe the Court ; for which purpose Lord Shaftes- 
bury and Lord Wharton, and other chiefs of the Whig party, 
were also present. The result was that the judges, by a majority 
of five against three, overruled Hale's judgment. This is North's 
account of the matter, compiled from his Life of the Lord Keeper 
and his Examen ; it is unnecessary to add, with how much 
deduction it is to be received on the score of party prejudice. 
His representations of Hale have been commented on severely, 
and in some respects justly, by Mr. Hargrave, in his preface to 
his Collection of Tracts, and to Hale's Jurisdiction of the House 
of Lords. 

In 1676, Hale resigned his oflice, on account of the sudden 
failure of his health. It is honourable both to the country and 
its governors, that the latter did all in their power to induce him 
to retain it, and to avert what, as Dr. Williams truly says, was 
regarded almost as a national calamity; so great was the love 
and veneration in which he was held. " His voice," says no 
favourable witness, " was oracular, and his person little less 
than adored." He surrendered his place by a formal deed of 
resignation, drawn and written by himself: this step he took in 
order to obviate the doubt which then existed, whether a chief 
justice, being placed by writ, was removable at pleasure like 
other judges. His death followed shortly afterwards, December 
25, 1676, at his seat in Gloucestershire. 

Neither our limits, nor the character of our work, admit of 
our entering into those beautiful details of Hale's domestic life, 
which have rendered his memory even more cherished by the 



30 SIR MATTHEW HALE. 

good and pious in all professions, than it is venerated on other 
grounds by the learned in his own. His piety, among his many 
virtues, was the most conspicuous and is the best remembered ; 
but, as we have said before, he was rather one of those who 
have honoured the Church of England by moral and religious 
excellence at home, than by a zealous advocacy of her cause in 
her temporal struggles. No pen has given so interesting a 
description of his habits, with respect to religious observance, as 
his own : but the letter of Baxter to Mr. Stephens, written after 
the publication of his life by Bishop Burnet, adds much to our 
knowledge of his thoughts and familiar conversation on spiritual 
topics. Baxter became acquainted with him through neighbour- 
hood, at Acton near London, where they both resided, in 1670. 
Their acquaintance soon ripened into intimacy : and the high 
mutual respect which they entertained for each other was of 
service to both ; to Baxter especially, whose hostility towards 
the Church was tempered by intercourse with so excellent a 
member of it^ while Hale, by all his principles as well as the 
turn of his mind, was inclined towards moderation. The latter 
was very favourable to the project of a new act of uniformity for 
the purpose of reconciling the dissenters to the Church; and, at 
one time, drew up the form of a bill to that effect, with the 
assistance of some divines of both ^des : but the zeal of the 
then House of Commons prevented it from being ever proposed ; 
and thus was stifled, perhaps, one of the most hopeful of the 
many schemes which have been framed for that end. Baxter, 
who evidently wishes to make the judge lean towards his side 
of the question as far as possible, dwells on some particularities 
in his conduct in church ;* as, that *' to avoid the differencing 

* Hale's conscientious observance of the Sabbalh is a well-known 
and admirable Irait in his character; in which he has been imitated 
by but few distinguished legal personages. But Dr. Williams draws 
rather largely on our admiration of him in such passages as the follow- 
ing: — "As early as the year 1651, when suddenly called upon, in the 
capacity of counsel for Mr. Love, he shrank not, like a true-hearted 
follower of Christ, from avowing as the reason of his unpreparedness, 
that it was Saturday night late before he had notice of the engagement, 
and that the next day was not a day to think of these things." There 
can be no doubt of the sincerity of the avowal; but we do not see its 
boldness. The man who had ventured to avow, in 1651, that he had 



SIR MATTHEW HALE. 31 

of the gospels from the epistles, and the bowing at the name of 
Jesus, from the names Christ, Saviour, God, &c., he would use 
some equality in his gestures, and stand up at the reading of all 
God's word alike." At all events, he protected, as far as his 
office would allow him, the unfortunate non-conformists, who 
were subjected to persecution under the sweeping enactments of 
Charles the Second's resign. 

Why Sir Matthew Hale should have married two successive 
wives from Fawley, in Berkshire, his biographers have neglected 
to inform us ; it is fair to suppose, that having found the first 
commodity of excellent quaUty, he resorted to the same place 
on the next occasion ; but we are inclined to suspect that there 
is some mistake in this part of his biography, and that the 
second lady has been confounded with the first, who was the 
daughter of Sir Henry Moore, and grand-daughter of Sir 
Francis, serjeant-at-law. It is rather singular, considering 
Hale's character as a model of domestic virtues, and the author 
of the famous " Letters of Advice to his Grandchildren," that 
neither he nor any one else seems to have thought it worth 
while to leave any mention at all of her, except that she bore 
him ten children : while they have said very little about her 
successor. The latter, according to the judge's detractors, was 
a servant ; this his panegyrists deny. It seems certain, how- 
ever, that she was of low origin, and that he married her for 
the sake of being tended in his old age. He speaks highly of 
her in his will : of his children little is known. Roger North 

attended to his client's cause on a Sunday, would have been incom- 
parably the bolder of the two. He would have had to put up with the 
loss of practice and reputation, and, perhaps, with a fine or a month's 
leisure in prison into the bargain. Surely, too, the reasons which Hale 
assigned for his strictness in this respect are not all to be cited as evi- 
dences of a rational piety: as when he told Baxter of all the "cross 
accidents" which befel him on a Sunday journey ; how « one horse fell 
lame, another died, and much more ; which struck him with such a 
sense of Divine rebuke as he never forgot;" and many similar pass- 
ages, in which he asserts that temporal affairs conducted on that day 
never turned out well. Such notions cannot be less superstitious, 
when expressed by a learned and religious scholar, than when uttered 
by an ignorant rustic. At all events, they are not the reasons which 
should be propounded to induce men to reverence the Lord's Day. 



32 SIR MATTHEW HALE. 

says, that his sons all died " in the sink of lewdness and 
debauchery," and ascribes the catastrophe to the strictness of 
their education. One only survived him ; but, as all were 
married, it is hardly probable that they were men of very irre- 
gular lives. 

Dr. Williams's book concludes with a catalogue of Sir Matthew 
Hale's numerous works, the greater part of which were left by 
him in MS., and amongst these his most valuable legal treatises. 
It is singular, although by no means without parallel in the lives 
of celebrated men, that he should have set so little store by the 
fruits of his study in the line of his own profession, and applied 
himself with much more apparent complacency to the produc- 
tion of essays on matters of philosophy, in which his talents 
are not exhibited to the best advantage. This was certainly 
the case, although Dr. Williams seems hardly inclined to admit 
it: and it is the more remarkable, because the judge was not 
only versed in record law far beyond any man of his time 
(Prynne, perhaps, excepted), but in reality fondly attached to 
the pursuit of that and similar abstruse antiquarian studies. 
One of North's charges against him is, that in the trial of a 
cause between the lord of the manor and the people of some 
township in Essex, the former having set up his title by a long 
deduction from " offices post mortem, charters, pedigrees, and 
divers matters of record," he was so transported beyond the 
bounds of judicial reserve, as to call it " a noble evidence;" 
thereby, in that writer's opinion, prejudicing the opponent's 
case, which had not yet been heard. To Lord Hale's other 
merits as a writer two must be added, which have not perhaps 
been made so frequently the subjects of encomium as the rest: 
his singular clearness of arrangement, a virtue by which few 
writers of that age were distinguished, and his manly, vernacular 
diction ; which his enemy, whom we have been obliged so often 
to cite against him, calls "a significant English style, better 
than which no one would desire to meet with as a temptation to 
read." 

-We cannot avoid concluding this paper with the following 
characteristic letter of Lord Erskine, which, although having no 
reference to his subject. Dr. Williams has printed among his 
notes as a curiosity. It appears to have been on the occasion 



SIR MATTHEW HALE. 33 

of some free-and-easy jest, of which the ex-chancellor had been 
made the subject. 

"Upper Berkeley Street, November 13, 1819. 
" Sir, 
" Your letter was sent to me from Sussex yesterday. I cer- 
tainly was appointed chancellor under the administration under 
which Mr. Fox was secretary of state in 1806, and could have 
been chancellor under no administration in which he had not 
had a part; nor would have accepted, without him, any office 
whatsoever. I believe that administration was said, by all the 
blockheads, to be made up of all the talent in the country. 

*' But you have certainly lost your bet on the subject of my 
decrees. None of lohich, but one, was appealed against, except 
one upon a branch of Mr. Thellusson's will ; but it was affirmed 
without a dissentient voice, on the motion of Lord Eldon, then, 
and now. Lord Chancellor. If you think I was no lawyer, you 
may continue to think so. It is plain you are no lawyer your- 
self; but I wish every man to retain his opinions, though at the 
cost of three dozen of port. 

" Your humble servant, 

" Erskine." 

" To save you from spending your money upon bets you are 
sure to lose, remember that no man can be a great advocate who 
is no lawyer. The thing is impossible." 



LORD KEEPER WIIITELOCKE, 



In the sketch we are about to present of the biography of this 
eminent person, who filled a conspicuous place in public affairs 
during incomparably the most eventful and interesting period of 
our history, it is by no means our purpose to engage in the dis- 
cussion of any of the momentous political questions which then 
distracted the nation, and still supply materials of eager dispute 
to the partisans of the two great contending principles in our 
constitution. The events and characters of the Rebellion and 
the Protectorate will long continue to furnish subjects of grave 
discussion to the philosophic historian, and of personal applica- 
tion to the party struggles and party men of the day. Our task 
is the more humble and limited one of tracing the personal and 
professional career of one, who, although a prominent actor in 
the scenes of that tempestuous time, was himself characterized 
throughout by moderation and candour in his views of public 
events, and his judgment of political opponents. 

Bulstrode Whitelocke — the only son of Sir James White- 
locke, a judge of the Court of King's Bench, by his wife Eliza- 
beth, daughter of Edward Bulstrode, Esq., of Hedgley Bulstrode, 
Buckinghamshire, and sister of Bulstrode the reporter — was born 
on the 6th of August, 1605, in Fleet Street, at the house of his 
mother's uncle. Sir George Croke, himself a judge successively 
of the Common Pleas and King's Bench, and the well-known 
collector of cases decided in the reigns of Elizabeth and her two 
successors. Sir James, a man of learning and ability, gave 
proof of another quality much rarer in his times, namely, inde- 
pendence of character, by his judgment in the important case 
of Darnell and the other gentlemen committed for their refusal 
to contribute to the forced loans levied in 1626. He had also, 
when at the bar, been subjected to a Star Chamber prosecution 



LORD KEEPER WHITELOCKE. 35 

for a professional opinion given to a client against the legality of 
the benevolences exacted by James I. in 1613. Charles I. him- 
self characterized him as "a stout, wise, and learned man, and 
one who knew what belonged to uphold magistrates and magis- 
tracy in their dignity." The son, after passing with credit 
through Merchant Taylors' School, was matriculated, in 
Michaelmas Term, 1620, a gentleman commoner of St. John's 
College, Oxford, of which Laud was then president ; to whose 
care he was specially recommended, and from whom he received 
many kindnesses. He quitted the university without taking a 
degree, (for what cause does not appear,) entered on the occupa- 
tion of chambers in the Middle Temple, and commenced the 
assiduous study of the law, under his father's careful supervision. 
He informs us that, while a student, " according to the leave he 
had from his father, and by his means from the several judges, 
he rode all the circuits of England, to acquaint himself with his 
native country, and the memorable things therein ;" and his 
speeches and writings sufficiently attest the proficiency he had 
attained in classical learning, and his acquaintance with the 
modern literature, such as it was, of that period — the schoolmen 
and chroniclers of the middle ages. In Michaelmas Term, 1626, 
he was called to the bar by the society of the Middle Temple, 
having been a student of that Inn since August, 1619. It would 
appear that in those days there was a far greater scarcity of 
elderly gentlemen than at present to fill the offices in the Inns 
of Court; for, so early as Christmas 1628, Mr. Whitelocke 
was promoted to be Treasurer and Master of the Revels of the 
Middle Temple. He gives us, in his Memorials, an amusing 
account of his introduction, in his capacity of Treasurer, to the 
Attorney-General Noy. A student of the Inn having died in 
chambers, the society disbursed money for his funeral, which 
his father refused to repay : it was thereupon resolved, that a 
bill should be preferred against him in the Court of Requests, 
in the name of the Treasurer, " setting forth the customs of the 
Inns of Court for the solemnities of Christmas, and the choice 
of Christmas officers, with the whole matter relating to Mr. 
Basing, [the party recusant,] and to pray that he might be com- 
pelled to pay the money so distributed, with damages. The 
bill was drawn accordingly, and the honour, customs, and socie- 



36 LORD KEEPER WHITELOCKE. 

ties of the Inns of Court ingeniously and handsomely at large 
expressed therein." " Upon my carrying the bill to Mr. Attor- 
ney-General Noy, (for his signature with that of other principal 
members of the Inn,) he was pleased," adds Whitelocke, "to 
advise with me about a patent the king commanded him to draw 
of association between England and Scotland, concerning the 
business of fishing ; upon which he gave me a fee for it out of 
his little purse, saying, * Here, take these single pence,' which 
amounted to eleven groats, 'and I give you more than an attor- 
ney's fee, because you will be a better man than an Attorney- 
General, and this you will find to be true.' After much other 
drolling, wherein he delighted, and was very good at it, we 
parted, abundance of company attending to speak with him all 
this time." Some years afterwards he was entrusted by the society 
with a still more distinguished and momentous charge, being 
nominated one of the managers of the Royal Masque, exhibited 
by the four inns of Court at Whitehall, before Charles I. and 
his Court, in 1633, in order " to manifest the difference of their 
opinions from Mr. Prynne's new learning," and as a confutation 
of his Histriomastix against interludes. A committee, consisting 
of two members of each inn, amongst whom are the grave and 
learned names of Selden, Noy, Hyde, Finch, and Herbert, was 
appointed to get up and conduct the pageant, each having the 
management of a particular department. To Whitelocke was 
committed the " whole care and charge of the music, which was 
so performed," as he assures us, " that it excelled any music 
that ever, before that time, had been heard in England." He 
details, in his Memorials, at much length, and with great self- 
complacency, all the particulars of this grand gala, — so soon to 
be succeeded by scenes and sounds with which royalty had 
been far less familiar. 

Whitelocke had already formed opinions strongly adverse to 
the arbitrary measures of the Court, and the intolerant preten- 
sions of the churchmen. It would appear from the following 
passage in his Memorials, under the date of 1635, that he was 
already in the commission of the peace ; it is clear that he had 
attained considerable professional repute among the gentry of 
Oxfordshire, notwithstanding the reprehensible innovations he 
admits himself to have countenanced in the weighty matter of 



LORD KEEPER WHITELOCKE. 37 

professional costume. " At the quarter sessions at Oxford," he 
tells us, " I was put into the chair in Court, though I was in 
coloured clothes, a sword by ray side, and a falling band, which 
was unusual for lawyers in those days, and, in this garb, I gave 
the charge to the grand jury. I took occasion to enlarge on the 
point of jurisdiction in the temporal Courts in matters ecclesi- 
astical, and the antiquity thereof, which I did the rather because 
the spiritual men began in those days to swell higher than ordi- 
nary, and to take it as an injury to the Church that any thing 
savouring of the spirituality should be within the cognizance of 
ignorant laymen. The gentlemen and freeholders seemed well 
pleased with my charge, and the management of the business of 
the sessions ; and said that they perceived one might speak as 
good sense in a falHng band as in a ruff." From several other 
entries in his memoirs, it appears that about the same time he 
began to grow into considerable employment with the party 
engaged in resistance to the exactions of the Court. He was 
retained on behalf of the landholders who claimed rights of chase 
and pasturage in Whichwood Forest, in Oxfordshire, to defend 
their franchises against the encroachments of the Earl of Danby, 
the Lieutenant of the forest under the Crown ; and took great 
pains, both in person, and through the researches of his profes- 
sional friends, in researches into the forest laws, and in the tran- 
scription of records and other documents relating to the subject. 
He was consulted also by Hampden, whom he terms his country- 
man and kinsman, on his prosecution for ship-money — appa- 
rently, however, rather as a private friend than in his professional 
capacity ; and when, on the rising of the Scottish Covenanters, 
in 1638, "the gentlemen who had been imprisoned for the loan, 
or distrained for the ship-money, or otherwise disobliged, had 
application made to them from the covenanters, and secretly 
favoured them, and assisted their designs, I wanted not," he says, 
" solicitations on behalf of the Covenanters ; but I persuaded 
my friends not to foment these growing public differences, nor to 
be any means of encouraging a foreign nation^ proud and subtle, 
against our natural prince." Who would have supposed that 
this " natural prince" himself was a native of the very " foreign 
nation" whose machinations against his authority were so 
seriously to be deprecated ? 



38 LORD KEEPER WHITELOCKE. 

Whitelocke lived at lliis time, notwithstanding his political 
impressions, in the most confidential intimacy with Hyde, Pal- 
mer, and olliers of his professional contemporaries of more 
royalist inclinations. Some interesting specimens of Hyde's 
correspondence with him are preserved in his Memorials. Under 
the date of 1636, he writes — " I received from my kind friend, 
Mr. Edward Hyde, a letter from London, wherein he drolls, 
and says, our best news is that we have good wine abundantly 
come over ; and the worst that the j^lague is in town, and no 
judges die ; the old observed baron, out of mere frowardness, 
resolving to live." Who would recognize in the gossipping 
sportiveness of this and the following letters, the hand of the 
grave and stately Clarendon ? — He writes thus to his friend, on 
the occasion of the birth of his eldest son, and in allusion to a 
visit he had promised him : — 

" To my most honoured friend Bulstrode Whitelocke, Esq., at 
his house at Fawley Court. 

*' My dear Sir, 
" I am glad you prosper so happily in issue male ; God send 
the good woman well again, which my wife prays for as an 
encouragement for her journey, which she shall shortly be ready 
for. You may depend on a doe on Monday, God willing, altho' 
this weather forbids you to look for a fat one. My pen is deep 
in a Star Chamber bill, and therefore I have only the leisure and 
the manners to tell you I am very proud you are a friend to 

" Edward Hyde." 

The reader of our day will smile at the difficulty of commu- 
nication between the metropolis and a gentleman's seat some 
thirty miles distant, in a time of profound internal peace. 

" Sir, 
" Next your letter, I thank you for your messenger, by whom 
you enable me to return [reply] to you, for I was mourning you 
had gotten so far beforehand with me, while I knew no convey- 
ance might reach you : your vicar sent me your first by a porter, 
but no instruction to find you out. I will not so far lessen my 



LORD KEEPER WHITELOCKE. 39 

devotion to Fawley, to tell you 'tis fit I breathe the country air ; 
indeed, this beloved town is to me all health ; yet I intend no- 
thing more than to visit you this Lent, and be so merry with you 
that you shall perceive you have much of my heart in your 
keeping. The time exactly I dare not promise : however, it 
shall not be the 29th, for I am in Dr. Moor's disposal for one 
week's physic, which should have been dispatched ere this, but 
that my Lord Treasurer's* sickness confined him solely there, 
and he would not undertake two persons of such quality together ; 
but he is as dead as you could wish, if he recover not again as 
he did yesterday, when he was left by all. 

" Your pilot calls for my despatch, and will allow me no more 
time than to tell you I wish you all the contents of your own 
prayers, and am 

" Your most humble and affectionate servant, 

"Edward Hyde." 

" My little wench desires you to accept her humble service : 
mine to my little friend." 

On the assembling of the Long Parliament in 1610, White- 
locke, having first sustained an unsuccessful contest for the 
borough of Great Marlow, succeeded, on a petition, in dis- 
lodging the sitting members on the ground of insufficient notice 
of the election, and was returned on a new writ being issued. 
His first appearance as a speaker was in defence at once of his 
father's memory and his own patrimony, in the debate which 
arose upon the motion, that Selden and the other members of the 
House who were illegally imprisoned in 1629, should receive 
indemnification out of the estates of the judges who had been 
parties to the judgment in the Court of King's Bench, when that 
Court refused to bail them. He affirmed that his father had 
entertained the same sentiments with Mr. Justice Croke, that 
the defendants were entitled to be admitted to bail ; and having 
appealed to his former services, and his persecution in behalf of 
the liberty of the subject, in proof of the liberality of his opinions, 

* This Lord Treasurer was Juxon, Bishop of London, who survived, 
as is well known, to render the last offices to his royal master. His 
promotion had been very distasteful to the popular party. 



40 LORD KEEPER WHITELOCKE. 

succeeded in obtaining for him the same immunity with his 
learned kinsman. His own adhesion to the popular party must 
have been early and decidedly manifested, and his reputation as 
a member of that party no less strongly recognized ; since he 
was not only named on the committee appointed to draw up the 
impeachment against Strafford, but elected its chairman. On 
the trial, he was nominated to manage the seven last articles of 
the impeachment ; but declined to appear in support of one of 
them — that which charged the earl with a design of bringing 
over the army of Ireland, for the purpose of reducing England 
to subjection — as not being supported by sufficient evidence ; 
thinking it, as he informs us, "not honourable for the House of 
Commons to proceed upon an article whereof they could not 
make a clear proof." He proposed accordingly to the com- 
mittee that this article should be omitted in the proceedings ; 
the majority were of the same opinion, but on Sir Walter Earle's 
undertaking to manage it, it was ultimately retained, and assigned 
to him. The worthy knight, however, broke down so deplorably 
in the conduct and proof of his case, that the Queen, who was 
present during the proceedings, having inquired and being told 
his name, said, "That water-dog did bark, but not bite; but 
the rest did bite close." Strafford himself bore testimony to 
the candour and fairness, as well as talent, with which White- 
locke discharged his part in the prosecution. Glynne and May- 
nard, he said, used him like advocates, but Palmer and White- 
locke hke gentlemen, and yet left out nothing that was material 
to be urged against him. Whitelocke, indeed, it is pretty evi- 
dent, notwithstanding the prominent part assigned him in the 
proceedings, regarded the result with regret rather than triumph. 
" Certainly," says he, in closing his touching narrative of the 
trial and execution of the illustrious delinquent, " never any 
man acted such a part, on such a theatre, with more wisdom, con- 
stancy, and eloquence, with greater reason, judgment, and temper, 
and with a better grace in all his words and gestures, than this 
great and excellent person did ; and he moved the hearts of all 
his auditors, some few excepted, to remorse and pity." 

A circumstance occurred in the course of the proceedings 
which subjected Whitelocke himself to no slight suspicion of 
political duplicity. An important document, which the younger 



LORD KEEPER WHITELOCKE. 41 

Vane had possessed himself of, and had produced before the 
committee, in proof of Strafford's design of employing the army 
for the consolidation of the royal authority, was found to be 
missing from among the papers which, on Whitelocke's nomi- 
nation as chairman, had been committed to his custody, and the 
heaviest suspicion of being privy to its abstraction naturally 
rested upon him. He was cleared, however, from all public 
censure, after making, in common with the other members of 
the committee, a solemn protestation before the House of his 
innocence in the matter ; and after the battle of Naseby, when 
the King's cabinet fell into the hands of the conquerors, a copy 
of the paper was found in it, in the handwriting of Lord Digby, 
who, as a member of the committee, had bound himself to the 
same solemn protest with the rest, although he had doubtless 
been for some time in secret correspondence with the royalist 
party, his open defection to which very shortly followed. 

On the impeachment of Laud, Whitelocke was again named 
on the committee appointed to draw up the articles, but obtained 
with considerable difficulty, and not until after an earnest remon- 
strance to the whole House, a remission from the employment, 
on the ground of the kindnesses shown him by the archbishop 
when at college. At this period, when the heat of civil discord 
was just kindling into the flame of open war, his parliamentary 
efforts were directed — with no great vigour, indeed, and we need 
not s»y with how little success, but yet, so far as we can dis- 
cover, with full sincerity of purpose — to the encouraging of 
pacific dispositions, and to preventing the concentration of power 
in the hands of the parties disposed to extreme measures. Li 
the debate on the bill for arming the militia, he supported, in a 
speech of considerable length, the opinion of those members of 
the moderate party who urged that the King should be again 
petitioned to place the command of the internal force of the king- 
dom in such hands as he and the parliament should jointly 
nominate, and who, the speaker expressed his hope, " would be 
more careful to keep it sheathed than to draw it." On the pass- 
ing of that bill — the virtual commencement of an armed rebel- 
lion — Hyde, and other lawyers of the same party, withdrew 
finally from the House. It is plain that Whitelocke underwent 
some conflict of opinion whether he should not follow the same 

4 



42 LORD KEEPER WHTTELOCKE. 

course ; the arguments, however, of the Lord Keeper Littleton 
(what an authority !) and other lawyers, and the protestations 
of the most powerful and active members of the popular party, 
that they had no purpose or intention of war with the King, but 
to arm themselves for their necessary defence, prevailed upon 
him, as he informs us, to keep his station, and to accept com- 
missions of deputy lieutenancy in the force about to be organized. 
He was accordingly named a deputy-lieutenant for Bucks and 
Oxfordshire, in which two counties his family property and 
connexions chiefly lay. But he still continued earnestly to 
advocate a pacific adjustment of the quarrel. In a speech in the 
course of the debate on the resolutions for organizing the army, 
in the session of 1642, he strongly urged the House to make the 
experiment of further overtures of peace, and to name a com- 
mittee to review the former unsuccessful propositions. He drew 
a lively picture of the silent yet rapid strides of civil war ; — 
" We scarce know how, but from paper combats by declara- 
tions, remonstrances, protestations, votes, messages, answers, 
and replies, we are now come to the question of raising forces, 
and naming a general and officers of an army. But what may 
be the progress hereof, the poet tells you — 

* Jusque datum sceleri canimus, populuraque potentem 
In sua victrici conversum viscera dexiera !'" 

Notwithstanding his pacific dispositions, however, and per- 
haps also some qualms of conscience as to the justifiableness of 
the armed resistance he was engaging in, he accepted the com- 
mand of a company of horse in Hampden's regiment, composed 
chiefly of his own Oxfordshire neighbours, with whom he 
marched against Sir John Biron, and took possession of Oxford 
— " being welcomed by the townsmen," as he tells us with much 
naivete, " more than by the scholars." During the short cam- 
paign in that part of the kingdom, in this year (1642), a regiment 
of horse of Prince Rupert's brigade quartered themselves in his 
house of Fawley Court, near Henley-upon-Thames, and, in spite 
of their commanding ofiicer's directions to respect his property, 
indulged in excess and rapine of every kind — destroyed his 
deeds, books, and manuscripts, cut open his bedding, carried 



LORD KEEPER WHITELOCKE. 4S 

away his " coach and four horses, and all his saddle-horses ;" 
killed his hounds, of which he boasts that he had a pack of 
peculiar excellence, and destroyed or let out all his deer. These 
outrages, as he assures us, he remembered only to deplore the 
national discords of which they were the consequence ; it appears, 
however, by no means improbable that they contributed to con- 
firm him in his adhesion to the party in whose cause his pro- 
perty had sustained such ravage. His own share in the actual 
business of war was brief enough ; we shortly find him sitting 
as one of the lay members of the Assembly of Divines, in which 
he distinguished himself, in common with Selden and other anti- 
Presbyterian members, by a stout opposition to the claims of the 
Presbyteries to ecclesiastical government jure divino ; and it 
was mainly by his means that the resolution, passed in the 
Assembly and proposed to the House of Commons, in affirm- 
ance of their divine right, was there negatived, by dint of speak- 
ing against time until a sufficient number of anti-Presbyterian 
members had been got together. 

In the same year (January 1642-3), he was named one of the 
commissioners to carry propositions of peace to the king at Ox- 
ford. The worthy delegates were treated on the road with no 
great consideration, and were received in the loyal city itself with 
incivility and abuse almost amounting to actual violence. At 
their inn at Oxford, "a great bustle being heard in the hall," it 
appeared that some officers of the royal army had fallen foul of 
the commisioners' servants, calling them and their masters, and 
the parliament who had dispatched them, rogues, rebels, and 
traitors, and shutting them out, right royally, from the fire. The 
.commissioners, civilians though they were, manifested a full 
share of military spirit on the occasion. Holies and Whitelocke 
having come out to ascertain the cause of the clamour, the 
former, as his colleague relates, *' went presently to one of the 
king's officers, a tall big black man, and taking him by the collar, 
shook him, and told him it was basely and unworthily done of 
them to abuse their servants in their own quarters, and contrary 
to the king's safe conduct ; and took away his sword from him. 
I did the same," adds Whitelocke, " to another great mastiflf 
fellow, an officer also of the king's army, and took his sword 
from him." Both Holies and Whilelocke fell, on this occasion, 



44 LORD KEEPER WHITELOCKE. 

under a lively suspicion of a secret understanding with the 
royalists. Having obtained permission from their brotiier com- 
missioners to visit the Earl of Lindsey, who lay at the royal 
quarters ill of his wounds, the King and Prince Rupert, as if by 
chance, came into his chamber during their visit ; and the former, 
according to Whitelocke's account, after many professions of 
esteem for their persons and characters, requested their advice as 
to the answer he should give to the propositions of the parlia- 
ment, and desired them to confer together, and " set down some- 
thing in writing that might be fit for him to return in answer." 
They retired, accordingly, into another room, and having agreed 
on such a declaration as they thought might best tend to a pacific 
issue of the negotiation, Whitelocke wrote it out, as he tells us 
himself, without his name and in a feigned hand, and left it on 
the table of the room. Among the king's attendants was the 
Lord Saville, who shortly afterwards revolted to the parliament, 
and who, when the Presbyterian party, yet struggling for ascend- 
dancy, were desirous of getting rid by any means of the oppo- 
sition of Holies and Whitelocke, accused them to the House of 
being secretly well affected to the king's party, and having held 
intelligence with the court at Oxford, both during and after their 
mission thither. After a long series of examinations by a com- 
mittee appointed to inquire into the charge, resolutions were 
passed exculpatory of both the accused parties ; but they cer- 
tainly owed their acquittal fully as much to tlie infamous char- 
acter of their accuser, as to any proofs they furnished of their 
innoceflce. Clarendon asserts positively, that both during the 
negotiations at Oxford, and at the treaty of Uxbridge in the fol- 
lowing year — where also Whitelocke was one of the parlia-, 
mentary commissioners, and according to his own statement, was 
in daily intercourse with his former friends, Hyde, Palmer, and 
other commissioners for the king — he used with them *' his old 
openness, and professed his detestation of all the proceedings of 
his party, yet could not leave them." It is certain that he hung 
back as long as he safely could from committing himself to any 
concert with the Cromwellian party. He was one of those who 
were summoned by the Lord General Essex to a conference 
with the Scottish commissioners, in 1644, on the question 
whether Cromwell might not be proceeded against as an in^ 



LOUD KEEPER WHITELOCKE. 40 

cendiary — whom he defines to be " one that raiseth up the fire 
of contention — thatkindleth the burning hot flames of contention 
between the two countries." Whitelocke, however (by much 
too cautious a politician to commit himself by any violent coun- 
sels, and probably not without his suspicions of the presence of 
some of those " false brethren," who, as he informs us, forthwith 
carried the result of the conference to Cromwell), contented 
himself with advising the commissioners to wait for better proofs, 
before they ventured to attack a person of such quick and subtle 
parts, and who had secured so strong an interest in the House, of 
Commons. 

From this time, Whitelocke tells us, Cromwell treated him 
with more consideration and kindness than hitherto ; and from 
this time also, he appears to have detached himself gradually 
from the party of Essex, and to have viewed with a more tolerant 
eye the successive strides of his rival towards supremacy. He 
still, however, lent his strenuous opposition to the intolerant 
claims of the Presbyterians in matters of Church government 
and discipline, and for his resistance to their demand of a power 
of excommunication and suspension from the sacraments, was 
complimented by the rigid Presbyterians with the appellation of 
"an Erastian," and, what they probably deemed even more 
opprobrious, a disciple of Selden. He spoke and voted also 
against the self denying ordinance, which he did not hesitate to 
designate as a mere device for throwing all the power into the 
hands of the same intolerant party. They at length endeavoured 
to rid themselves of his opposition by a motion to send him Lord 
Justice into L'eland, to exercise the civil government there. But 
Cromwell, who was doubtless sufficiently aware that he had 
now little to apprehend from his presence in parliament, " was 
against his going away, and more than formerly desired his 
company, and began to use his advice in many things." About 
the same time (Sept. 1647), the city of London offered him their 
recordership, which also he declined ; whether from a natural 
reluctance to accept an office, so large a part of whose duties 
consisted in the trial of state offences, — an employment no less 
difficult and delicate than odious, — or from a scene of better 
things at hand, we will not determine. A few months after- 
wards (March 1647-8) he was nominated, in conjunction with 



46 LORD KEEPER WHITELOCKE. 

the Eail of Kent, Lord Grey of Werk, and Sir Thomas Wid- 
drington, one of the Commissioners for the custody of the 
Great Seal for a year; the two Houses having, after long and 

jealous deliberations, agreed that it should be entrusted for that 
period to the charge of two peers and two commoners. 

Whitelocke received the news of his appointment on the 
circuit at Gloucester, where, as he informs us, he was " in 
great practice, wherein none of his profession had a greater 
share than himself;" and is at great pains to assure us that the 
intelHgence was wholly a surprise upon him. It appears, in- 
deed, from many notices in his Memorials, which for several 
years before this date had assumed the form of a Diary, that he 
had for some time been in full and regular business, both in the 
Court of Chancery and at the bar of the House of Lords. By 
his own account, he was a loser to a very considerable amount 
by his advancement ; the whole annual emoluments of the office 
being no more than 1500/., whereas his professional income had 
been at least 2000/. 

He continued, it appears, so obnoxious to the Presbyterian 
party, that a few months after his appointment a new self-denying 
ordinance was proposed, to deprive members of the House of all 
offices conferred upon them during the sitting of that parliament, 
with the sole design, as he alleges, of removing him from his 
office. He refused to be nominated on the commission for the 
trial of the king, or to be in any way party to the proceedings, 
and accordingly w^ent out of town before the commencement of 
the trial ; resolving, as he declares, to hazard or lay down all, 
rather than do anything contrary to his judgment and con- 
science. He returned, however, before the termination of the 
proceedings ; and after some internal conflict, came to the deter- 
mination to accept, at the hands of the council of state, the 
custody of the new Great Seal of the Commonwealth. *' The 
itiost considerable particulars," he says, which influenced him 
in this determination, " were, that I was already very deeply 
engaged with this party ; that the business to be undertaken by 
me was the execution of law and justice, without which men 
could not live one by another, a thing of absolute necessity to be 
done." Under the guidance of these discreet considerations, 
he found no difficulty In subscribing the required acknowledg- 



LORD KEEPER WHITELOCKE. 47 

ment of the supreme authority of the Commons, and resumed 
his seat on the Chancery Bench. His colleague, Sir Thomas 
Widdrington, whose judgment was less easily convinced, or his 
conscience less elastic, threw up his appointment ; and it being 
no longer considered necessary that any members or the Upper 
House — already under sentence of extinction — should be asso- 
ciated in the office, Serjeant Keble and Mr. De Lisle were 
named as Whitelocke's colleagues in dignity, receiving their 
appointments no longer for a limited period, but quamdiu se 
bene gesserint, with the title of Lords Commissioners — it having 
first been matter of grave debate whether the former word, which 
smacked to republican ears of too direct an acknowledgment of 
aristocratical distinctions should not be dispensed with. " The 
burthen of the business," says Whitelocke, " lay heavy on me, 
being ancient [senior] in commission, and my brother Keble of 
little experience in practice, my brother Lisle of less, but very 
opinionative." The worthy functionaries, indeed, appear, from 
divers hints which Whitelocke lets fall, to have been, not unfre- 
quently, openly by the ears together ; and between the diffi- 
culties arising from their incompetency and mutual animosities, 
and from the unsettled state of public affairs, the business of the 
court was probably performed in a manner little likely to recon- 
cile the suitors and the public to the continuance of so crying a 
grievance as it was represented to them to be, in parliament and 
by the press. 

The abuses of the Court of Chancery are indeed described by 
the pamphleteers of those days, in terms, beside which the com- 
plaints of later times seem " fond and trivial." *' The Chancery," 
says one of them, *' was looked on as a great grievance, one of 
the greatest in the nation. For delatories, chargeableness, and a 
faculty of letting blood the people in the purse vein, even to their 
utter perishing and undoing, that court may compare, if not sur- 
pass, any court in the world. It was confidently affirmed by 
knowing gentlemen of worth, that there were depending in that 
court twenty-three thousand causes ; that some of them had 
been depending five, some ten, some twenty, some thirty years 
and more ; that there had been spent in causes, many hundreds, 
nay thousands of pounds, to the ruin, nay utter undoing of 
many families ; that no ship, almost (to wit, cause) that sailed in 



48 LORD KEEPER WHITELOCKE. 

the sea of the law, but first or last putting into that port ; and if 
they made any considerable stay there, they suffered so much 
loss, as the remedy was worse than the disease ; that what was 
ordered one day was contradicted the next, so as in some causes 
there had been five hundred orders, and far more, as some 
affirmed." Whitelocke himself admits the universal dissatisfac- 
tion of the suitors, though he ascribes it, complacently enough, 
to a general conspiracy of ignorance and obstinacy : — " The 
business of the Chancery was full of trouble this Michaelmas 
term (1652), and no man's cause came to a determination, how 
just soever, without the clamour of the party against whom 
judgment was given ; they being stark blind in their own causes, 
and resolved not to be convinced by reason or law." It was not 
for want of corporal labour in their vocation that the judges of 
those days failed to satisfy the requirements of the public. 
Whitelocke records an instance, in which, shortly before his own 
appointment, coming into court at seven in the morning, he found 
the commissioners had been sitting an hour before ; and he 
more than once states himself and his brothers on the bench to 
have sat from five in the morning until the same hour in the 
evening. Yet, notwithstanding all this laudible assiduity, one 
common cry of reproach pursued their labours. The House of 
Commons projected, for the redress of grievances so loudly 
complained of, remedies no less vigorous than the case seemed 
to be urgent. After passing several strong resolutions condemna- 
tory of the delays, abuses, and extortions practised in the court, 
they came at last, in the year 1653, to a vote for abolishing alto- 
gether the equity jurisdiction as it existed, and for the erection 
of an entirely new tribunal for the determination of the suits 
then pending, and for the administration of future relief in equity. 
The plan of this new jurisdiction had not been matured, when 
the proceedings of the parliament were cut short by Cromwell's 
celebrated dissolution. *'How did good people rejoice," ex- 
claims the author of the tract before quoted, " when they heard 
of that vote, and how sad and sorrowful were the lawyers and 
clerks for the loss of their great Diana, may be remembered ; 
Avith their great joy and making of bonfires, and drinking of 
sack, when they were delivered from their fears by the dissolu- 
tion of the late Parliament." Laws were now replaced by 



LORD KEEPER WHITELOCKE. 49 

ordinances ; and the Protector accordingly issued, in the follow- 
ing year, an ordinance " for regulating the jurisdiction of the 
Chancery," many of whose provisions were doubtless calculated 
to introduce considerable amendments in its constitution and 
practice, while others were no less ill-timed or ill-considered. 
The commissioners protested against the ordinance altogether, 
as proceeding from an authority which had no legislative power, 
and drew up moreover a statement of their objections to its de- 
tails. After some ineffectual attempts to persuade them into 
a compliance with his views,* Cromwell required them to sur- 
render the seals; but meantime complimented Whitelocke, whose 
independent conduct on the occasion he probably viewed rather 
with respect than displeasure, with the appointment of ambassa- 
dor to the Court of Sweden. But before pursuing his personal 
history from this point, we must return to notice briefly the 
political and legislative measures in which he bore a part during 
this his first occupation of the judicial seat. 

Notwithstanding his adhesion to the Cromwellian party — 
although, as Clarendon phrases it, he had at last bowed the knee 
to Baal — he still refused to concur in the more extreme manifes- 
tations of republican supremacy. He spoke and voted against 
the abolition of the House of Lords ; although, being unable to 
get himself excused, the task of drawing the act for its extinction 
was imposed on him. Still more vigorously did he stand forward 
in defence of his own order, when the proposition was made to 
prohibit lawyers, while members of the House, from the practice 
of their profession. He replied with much spirit to the invective 
which had been levelled against the law and its professors ; 
referred with considerable effect, and not without humour, to 
the history and proceedings of the parliamentum indoctum, 
which that very exclusion of lawyers had made a passive tool in 
the hands of the Crown ; and suggested to the author of the 
motion, " that in the act which he might be pleased to bring in 
for this purpose, it might likewise be inserted, that merchants 
should forbear their trading, physicians from visiting their 

* Lenthall, the notable Speaker of the Lortg Parliament, then Master 
of the Rolls, vowed that he would rather be hanged at the Rolls gate 
than submit to the ordinance ; yet, Whitelocke informs us, rather than 
put his place in peril, he wheeled about, and was the first to execute it. 



50 LORD KEEPER WHITELOCKE. 

patients, and conntry gentlemen should give up selling their corn 
and wool, whilst they sat as members of the House." It is worthy 
of notice, that in this speech he advocated in strong terms one 
amendment, the delay of which had been urged as a heavy re- 
proach to the law and lawyers — the admission of counsel on 
behalf of prisoners accused of treason and felony. It affords, 
indeed, a curious demonstration of the inconsistency with which 
an assembly, so purely democratic as the Long Parliament had 
now become, pursued its schemes of legal reform, in other re- 
spects so extensive and so vigorous, and comprising amendments 
more numerous and important than have ever since been con- 
templated as parts of one general plan of legislative improvement, 
that it should never have made any effort for the removal of a 
distinction whose apparently harsh character, one would have 
thought, would have peculiarly excited the jealousy of a body so 
impatient of inequality. But the necessity of a two-edged sword 
in the hands of the state prosecutor was not found less urgent by 
a Protector than by a King. 

Another legal amendment, in the discussion of which White- 
locke took a prominent part, was the proposition for conducting 
law proceedings in the English language — an innovation which 
appears to have been contemplated by some of the ancient wor- 
thies of our profession with even more dismay than the dissolu- 
tion of the House of Lords, or the abolition of kingship itself. 
Whitelock's speech on the occasion, though tinctured by a con- 
siderable infusion of legal pedantry, was sensible enough in the 
main ; he admitted that it was unreasonable to require the com- 
munity to " depend, by an implicit faith, upon the knowledge of 
others in that which concerned them most of all;" and fortified 
by the example of Moses, and a host of other legislators and 
philosophers, whom he cited as having expounded their laws to 
the people in the vernacular, he submitted with a good grace to 
the alteration. But it was not so complacently received by his 
brethren ; the reporters, in especial, were deep in their lamenta- 
tion of the sacrilege. Bulstrode tells us, in his preface to the 
second part of his Reports, " that he had many years since per- 
fected the work in French, in which language he desired it 
might have seen the light, being most proper for it, and most 
convenient for the professors of the law, who indeed were the 



LORD KEEPER WHITELOCKE. 51 

only competent judges thereof." Nay, he had almost determined 
rather to stifle his labours in the birth, than that any other editor 
should bring them forth in a shape of such deformity. " When 
I considered," he says, " the sad fate which hath befel many 
posthumous reports, through their unskilful translating, being 
very much corrupted and altered, I resolved with myself either 
to commit jmrricide, and, as the Lamiae, to smother mine own 
creatures in their cradle, or else to give being and life to them 
myself, whereby I might in some measure prevent the deformi- 
ties which usually happen to posthumous issues." " I have 
made these reports speak English," says Styles, "not that I 
believe they will be thereby more generally useful, for I have 
been always and yet am of opinion that that part of the common 
law which is in English hath only occasioned the making of 
unquiet spirits contentiously knowing, and more apt to offend 
others than to defend themselves ; but I have done it in obedi- 
ence to authority, and to stop the mouths of such of this English 
age, who, though they be confessedly different in their, minds 
and judgments as the builders of Babel were in their language, 
yet do think it vain, if not impious, to speak or understand more 
than their own mother tongue." But with the restitution of the 
other blessings of the monarchy, came also the re-establishment 
of the venerable compound in which the law was promulgated, 
and which maintained its pre-eminence almost for another cen- 
tury. The reporter Siderfin, in his account of the first call of 
Serjeants made on the Restoration, records exultingly that "le 
prochein jour ils vient en leur veux robes" — for the old gowns 
as well as the old language had disappeared before the barbarous 
tide of innovation — ■" et count en le Common Banke en Fran- 

While such were the revolutionary assaults which menaced 
the dignity and gravity of the law, the political movement was 
tending no less decidedly towards the erection of an uncontrolled 
despotism. At the celebrated conferences at the Speaker's house, 
in December 1651, Whitelocke ventured advice little palatable 
to the aspirations of the future dictator. He strongly recom- 
mended, as he tells us, a monarchical infusion into the govern- 
ment, and suggested that there might be a day given for the 
king's eldest son, or for the Duke of York, to come into the 



52 LORD KEEPER WHITELOCKE. 

parliament, and that, upon such terms as might be thought fit, 
and sufficient to secure the civil and religious liberties of the 
nation, a settlement might be made with them. "That," said 
the wily General, " will be a business of more than ordinary 
difficulty ; but really I think, if it may be done with safety and 
preservation of our rights, both as Englishmen and as Christians, 
a settlement with somewhat of monarchical power in it would 
be very effectual." The lawyers, our author informs us, were 
generally for a mixed monarchical government, and many were 
for the Duke of Gloucester to be made king; "but Cromwell 
still put off* that debate, and came off* to some other point ; and 
after a long debate, the company parted," as well they might, 
" without any result at all; only Cromwell discovered by this 
meeting the inclination of the persons that spoke, for which he 
fished, and made use of what he then discerned." One of the 
first uses he made of his experience was to promote as strongly 
as he could a fresh design of despatching Whitelocke to Ireland, 
as chief commissioner for exercising the civil government. He 
hints that a non-compliance with the General's pleasure "in 
some Chancery causes," as well as in the matter of a monarchi- 
cal settlement, contributed to excite his discontent. Whitelocke, 
however, stoutly resisted this scheme for his relegation into a 
dignified exile, and with some difficulty succeeded in maintaining 
his post. He records, not long after this date, an account of a 
highly amusing conversation which took place between Cromwell 
and himself, when taking the air in St. James's Park, on a fine 
November evening, after the labours of his court were over, 
wherein the Protector, with numberless professions of his pro- 
found respect for his lordship's integrity, fidelity, and learning, 
and his usual interminable protestations of his own devout attach- 
ment to liberty, religion, and the laws, besought the commis- 
sioner's valuable counsel on the expediency of his assuming the 
kingly title, as the means of composing the unhappy dissensions 
of the parliament and the kingdom. Whitelocke, with no less 
devoted assurances of his entire affiection to the interests of the 
Protector, and his appreciation of his highness's disinterested 
and magnanimous intentions for his country's good, nevertheless 
dissuaded him from the design, on the score of the prejudice it 
would excite among the pure republicans, still so formidable a 



LORD KEEPER WHITELOCKE. ^53 

party. " From that time," says Whitelocke, " his carriage 
towards me was altered, and he found not long after an occasion, 
by an honourable employment," namely, the embassy before 
mentioned, " to send me out of the way." He had ventured 
also a strong remonstrance against the dissolution of the parlia- 
ment; and after the execution of that noted coup d^etat, declined 
to proceed with the business of the Court of Chancery until after 
the publication of Cromwell's declaration of the grounds of the 
dissolution, and the issuing of the writs for the " little parlia- 
ment ;" in which, in consequence of all this recusancy, White- 
locke's name was not included. 

In November, 1653, he set out " with a gallant retinue" on 
his embassy, of the proceedings of which he afterwards pub- 
lished a detailed account. The eccentric pedant, Christina of 
Sweden, to whom his mission was directed, instead of attending 
to his diplomacy, entertained him with long metaphysical dis- 
quisitions, and involved him in a continual succession of balls 
and entertainments. She created him, moreover, a knight of 
the "order of Amarantha," of the decorations and investments 
of which he gives a glowing account ; and in virtue whereof he 
appears afterwards to have assumed, or to have been compli- 
mented with, the knightly prefix of Sir Bulstrode Whitelocke. 
He succeeded, however, in bringing his negotiations to a suc- 
cessful issue just lime enough to obtain the ratification of a 
treaty before her deposition of the crown, and returned with 
much credit from his mission. He resumed the duties of first 
Commissioner of the Great Seal, and was also nominated one 
of the Commissioners of the Exchequer. In Cromwell's second 
parliament he was returned for the county of Bucks, for the 
city of Oxford, and the borough of Bedford ; one of his sons 
being elected also for the county of Oxford. 

On his dismissal from the seals, upon the occasion we have 
before adverted to, he was advised and encouraged, as he in- 
forms us, to fall again into his profession; upon which he 
received many fees. After the lapse of a few months, however, 
he was made a Commissioner of the Treasury, with a salary 
nearly equal to that of the office he had relinquished, and also 
named a member of the committee of Council of Trade. He 
was now again, it appears, frequently consulted by Cromwell, 



54 LORD KEEPER WHITELOCKE. 

and particularly in relation to foreign affairs — a branch of politi- 
cal knowledge upon which, like Lord Hardwicke, he seems to 
have held it peculiarly flattering to be considered well informed. 
In the parliament summoned in 1G50, he was again elected, 
"first and unanimously," as he records with much exultation, 
knight of the shire for Buckinghamshire. He had now, it 
appears, although the state of parties seems to have afTorded 
little reason for the change, considerably improved his opinions 
as to the expediency of the Protector's investing himself with 
the kingly title ; and at the celebrated conference of the commis- 
sioners deputed by the House of Commons to debate the matter 
with his highness, concurred with the rest of them in strongly 
urging upon him the assumption of the crown he longed, yet 
feared, to wear. His zeal in this matter was shortly afterwards 
rewarded by a summons to Cromwell's Upper House of sixty 
members ; a patent was signed also for his advancement to the 
dignity of a viscount, but he declined an honour which promised 
to be of so uncertain tenure. 

The death of Cromwell presently dissolved the dangerous 
fabric of power, which his talents and vigilance had alone pre- 
vented from falling to pieces and burying him in its ruins. On 
Richard's accession to the protectorship, Whitelocke, whom he 
appears to have considered one of those on whom he might 
depend most securely for disinterested counsel in his difficult 
position, was appointed chief Lord Keeper of the Great Seal. 
In the anarchical confusion of parties which succeeded Richard's 
abandonment of his office, the Lord Keeper was evidently much 
perplexed what part to take. It seems that he was, so early as 
the spring of 1659, in correspondence with Monk, who, learning 
that the conduct of the bill for the union of England with Scot- 
land was entrusted to his hands, pressed him strongly to visit 
him at Edinburgh. The nature of their conferences, had this 
invitation been accepted, may be readily divined. He con- 
sidered it safest, however, to remain where he was, and con- 
tinued in the exercise of his judicial functions, so long as the 
disjointed and fluctuating state of public aS'airs permitted. On 
the passing of the act for a new great seal (May, 1659), by 
which the officers of the existing commissioners determined, he 
was appointed one of the Council of State to whom the conduct 



LORD KEEPER WHITELOCKE. 55 

of the government was committed by the Rump Parhament, and 
for some time sat and acted as its president. Ludlow (a preju- 
diced authority enough no doubt) affirms that he was all the 
while leagued in a corrupt and interested alliance with the fac- 
tion of Wallingford House. " The clergy and lawyers, in order 
to save tithes, and perpetuate abuses of their professions, became 
equally sensible of their common danger ; and in order to pre- 
vent it, Whitelocke and St. John for the lawyers, and Dr. 
Owen and Dr. Nye for the clergy, had at this time frequent 
meetings at the Savoy, and entered into a private treaty with 
the Wallingford House party, to raise £100,000 for the use of 
the army, upon assurance of being protected by them in the full 
enjoyment of their respective advantages and profits ; whereby 
we were left destitute of hope to see any other reformation of 
the clergy than what they themselves would consent to, any 
other regulation of the law than the Chief Justice and the Com- 
missioner of the Seal would permit." Whatever truth there 
may be in this representation, it is certain that when the balance 
of power fell into the hands of the army, Whitelocke was con- 
sidered so far deserving of confidence as to be nominated one of 
the select Council of Ten, to whom the executive authority was 
entrusted. This effigy of power was speedily pulled down, to 
make way for the still more direct emanation of military sove- 
reignty, in the persons of the Committee of Safety. He received 
a summons to act as a member of this body also ; but he had 
evidently begun to find his position, between the two conflicting 
parties, a questionable and perilous one. "I had resolved in 
my own mind," he says, " the present posture of affairs ; that 
there was no visible authority or power for government at this 
time but that of the army ; that if some legal authority were not 
agreed upon and settled, the army would probably take it into 
their own hands, and govern by the sword, or set up some form 
prejudicial to the rights and liberties of the people, and for the 
particular advantage and interest of the soldiery . . . Upon 
these and the like grounds, as also by the engagement of divers 
of the committee to join with me therein, I was persuaded to 
undertake it, and did meet with them at the place appointed." 
He persuaded himself also to take stronger and more decisive 
steps against the proc3edings of Monk, who was then on his 



56 LORD KEEPER WIIITELOCKE. 

triumphant march from Scotlaiul, than we should have supposed 
him likely to be a party to. He went with Fleetwood, Des- 
borough, and other principal officers, to the common council of 
London, and, as the spokesman of the deputation, "represented 
to them that the bottom of his (Monk's) design was to bring in 
the king upon a new civil war. I showed the danger of it to 
the city and nation, and counselled them to provide for their 
own safety, and to join for the safety of the whole nation, and 
for preservation of the peace. The common council," says he, 
*' returned thanks to us, and promised to follow our advice.''^ 
He advised also that Monk should be fallen upon before his 
soldiers were more confirmed by success, and Fleetwood's party 
discouraged. But the interested and discordant counsels of 
the miserable factions contending for ascendancy, availed little 
against the unity of purpose of the cautious and persevering 
soldier. Yet, strangely enough, it was only by the merest 
chance that he was not anticipated in the consummation of his 
plans by Whitelocke himself. In a conference which he states 
himself to have held with Fleetwood, shortly before Monk's 
arrival in London, he strongly urged him either to go into the 
field and declare for a free parliament, or to send to the king. 
Fleetwood inquired of him, whether he would go into the field 
with him ; to which he replied that he would do so if it became 
necessary. Fleetwood suggested that he, Whitelocke, should 
go to the king with the great seal ; this, however, he refused to 
do, and again urged the former to take some decided step in 
anticipation of Monk's design. Fleetwood, half inclined to fall 
in with the scheme, was dissuaded by Vane and Lambert from 
entertaining it, and Whitelocke did not venture to broach it 
further. During the short-lived predominance of the Rump 
which succeeded, so hostile a demonstration was made against 
him and other members who had acted on the Committee of 
Safety, that he became alarmed for his personal security, and 
retreated to a friend's house in tlie country. While he remained 
there, the Restoration was consummated. 

Notwithstanding the general moderation of his political senti- 
ments, and his recent disposition in favour of the settlement of 
affairs by the same means, he found himself in still greater peril 
at the hands of the royalists than of the Rump ; for it was only 



LORD KEEPER WHITELOCKE. 57 

by a majority of 175 votes over 134, that a motion to except 
his name out of the act of general pardon and oblivion was nega- 
tived. It is told of him, that, when he waited on the king to 
entreat his pardon for the part he had taken against him, all that 
his humorous majesty required of him was, that he should " go 
and live quietly in the country, and take care of his wife and one- 
and-thirty children;" an exaggeration of number truly royal, 
since (as he himself thankfully acknowledges, in a dedication to 
the king of a legal work, written during his subsequent retire- 
ment) all that the royal clemency did for him was to bestow 
upon him " his small fortune, liberty, and life, and to restore 
him to a wife and sixteen children." With them he continued 
to live in privacy for about fifteen years. He died at his seat of 
Chilton Park, in the seventieth year of his age. 

Lord Keeper Whitelocke was thrice married ; first, to a lady 
of the name of Bennet, the daughter of an alderman of London ; 
secondly, to Frances, daughter of Lord Willoughby of Parham ; 
lastly, to a widow lady of the name of Wilson, of the Carleton 
family. By all these ladies he had a numerous issue, of whom, 
as we have seen, no fewer than sixteen children were surviving 
at the period of the Restoration. 

Besides the " Memorials of English Aflfairs during the reign 
of Charles I. and the Commonwealth," from which we have so 
largely quoted, he compiled also an abridgment of the earlier 
English history, under the title of " Memorials of English Aff'airs 
from the supposed Expedition of Brute to this Island, to the 
End of the Reign of James I." Six small MS. volumes of 
" Notes on the King's Writ for choosing Members of Parlia- 
ment," from his pen, are also extant in the British Museum. 
(Ayscough's Catal., 4749—4754). 

In reviewing the character and conduct of the Lord Keeper 
Whitelocke, while it is impossible to ascribe to him very high 
praise for consistency or magnanimityof purpose, we are yet not 
disposed to agree in the condemnation of those whp have repre- 
sented him as a merely interested and unconscientious politician. 
Holding in the outset strong opinions against the arbitrary pro- 
ceedings of Charles I. and his government, he undoubtedly appears 
to have been insensibly drawn on, by his party connections, into 
a concurrence in measures to many of which his judgment 

5 



58 LORD KEEPER WHITELOCKE. 

yielded a doubtful assent. But we all know how often, in times 
of violent political conflict, this has been the case with public 
men of the most acknowledged good intentions ; and on occasions 
when he had to determine for himself upon a specific line of 
conduct, in relation to matters appealing directly to his private 
judgment, he did not hesitate to prefer a conscientious adherence 
to his principles to the preservation of his office. That he 
acquiesced, like Hale, in the government de facto established and 
acknowledged by the general submission of the kingdom, we 
deem no ground of reproach to him, even had his opinions been 
less in actual consonance with those on which the republican 
establishment was founded ; and it may be truly alleged in his 
behalf, that he was ever the uniform advocate of a tolerant and 
humane administration of the executive authority. Many in- 
stances are mentioned in his Memorials, in which he contended, 
and not seldom successfully, for the extension of clemency towards 
state offenders, or for protection to oppressed communities. He was 
a warm friend of literature, and was more than once associated 
with Selden in the execution of plans for its advancement. Cla- 
rendon, while he depreciates ,his character as a politician, admits 
him to have possessed a large share as well of general as of pro- 
fessional learning. His judicial reputation is not indeed of the 
highest order ; but some deduction must be made for the unpro- 
pitious times in which he lived, and for the associations which 
deprived him of power to act on his own principles, or to rely 
on his own strength. On the whole, though many of the public 
characters of that age are marked by infinitely brighter points of 
lustre, few, perhaps, have descended to us with less of actual or 
positive stain than that of Whitelocke. 



LORD NOTTINGHAM 



The ancient and wealthy house of Finch traces its origin to 
Henry Fitzherbert, who was Chamberlain to king Henry the 
First ; the more modern surname having been assumed on the 
acquisition of the manor of Finches in Kent, in the time of 
Edward the First. In the sixteenth century, the possessions of 
this family were greatly enlarged by the marriage of its head, 
Sir Thomas Finch, with the daughter of Sir Thomas Moyle, 
Chancellor of the Court of Augmentations in the reign of Henry 
the Eighth. Among several other manors and estates acquired 
by the match was that of Eastwell in Kent. Sir Moyle Finch 
of Eastwell, his eldest son, who was the first Kentish baronet, 
and the twenty-fifth in the general list of English Baronets, was 
'high sheriff of Kent in the 38th of Queen Elizabeth, and also 
in the 4th of James I. He married Elizabeth, only daughter 
and heiress of Sir Thomas Heneage, of Copped Hall in Essex, 
Chancellor of the Duchy of Lancaster, vice-chamberlain to 
Queen Elizabeth, and a member of the privy council. After the 
death of her husband, this lady was created Viscountess of iNIaid- 
stone by James I., and Countess of Winchelsea by his succes- 
sor : which dignities, together with the greater part of the united 
possessions of the houses of Finch and Heneage, including the 
manor of Eastwell, descended to her eldest son, Sir Thomas 
Finch, first Earl of Winchelsea. 

Sir Henry Finch, knight, of the Mote, near Canterbury, and 
twice representative of that city in parliament during the reign of 
Elizabeth, second brother to Sir Moyle Finch of Eastwell, was, 
in point of date, the first of the five celebrated lawyers of this 
family who flourished in the course of the seventeenth century. 
He was of Gray's Inn ; became autumn reader of the society in 
the second of James I., took the coif in 1614, and was made 



60 LORD NOTTINGHAM. 

king's Serjeant on the eleventh of June, 1G16. (14 James I.) 
The work usually known by the name of Finch's Law, of 
which the first edition, written in French,* was published in 
1613, was his composition. It was afterwards translated into 
English by the author himself, and in this form was long con- 
sidered the most fitting elementary text book to place in the 
hands of students. Since the publication of Blackstone's Com- 
mentaries, it is very rarely, we should think, disturbed from its 
repose on the shelf, except for curiosity ; but it still deserves to 
be remembered, as one of the very few attempts that have been 
made to reduce the body of English law into any thing like a 
system. How novel an undertaking this was in his time, and 
how successfully he considered himself to have achieved it, may 
be inferred from such sentences as the two following, in the 
Latin dedication to James I. which is prefixed to the original 
edition : — " Inter innumeros tarn augustse disciplinae alumnos, 
surrexit adhuc nemo, qui in eo elaboravit, ut rerum proestantiam 
melhodi prsestantia consequatur." .... "Aut ego vehementer 
fallor, aut superavi rei vix credendae difficultatem raaximam ; 
syrtesque et scopulos, Scyllam et Charybdin prseternavigavi." 
Besides this work. Sir Henry Finch composed another on a 
very different subject, which is mentioned by Fuller in hi^ 
Worthies, when summing up his performances as an author : 
" He wrote a booke of the law, in great esteem with men of his 
own profession ; yet were not his studies confined thereunto. 
Witness his booke of the Calling of the Jews." 

John, the son of this Sir Henry Finch, is almost equally cele- 
brated for his talents as a lawyer, and notorious for his profligacy 
as a judge. The date of his birth is the 17th of September, 

* "Nomotechnia, cest a s9avoir un description del common leys 
d'Angleterre solonque les rules del Art. Parallelees eve les Prerogatives 
le Roy. Ovesque auxy le substance & effect de les Estatutes (disposes 
en lour proper lieux) per lequels le common ley est abridge, enlarge, 
ou ascunwent alter, del commencement de Magna Charta, fait 9. H. 3. 
tanque a cest jour. Per Henrie Finch de Grayes Inne, Apprentice del 
ley." (Small folio.) There is another work, entitled " Law, a discourse 
thereof in four books, by Sir Henry Finch, Knt. his Majesty's Serjeant 
at Law" (t627) ; but we believe Sir Henry was only so far the author 
of it that it is almost entirely borrowed from his "Nomotechnia." 



LORD NOTTINGHAM. 61 

1584. We find his name on the books of Gray's Inn, as 
autumn reader, in the sixteenth of James I., and treasurer in the 
second of Charles the First. He was also one of the two 
members deputed by that society to arrange the preparations for 
the splendid pageant presented by the four inns of court to the 
king and queen at Whitehall, in 1633, of which so full and elabo- 
rate an account is given by Whitelocke (himself one of the 
managers on behalf of the Middle Temple) in his Memorials.* 
Finch was at that time attorney-general to the Queen, and had 
previously (1627) been elected Speaker of the House of Com- 
mons. He was appointed a puisne judge of the Common 
Pleas (14th October 1634, 10 Ch. 1.), became Chief Justice of 
the same court in the following year (21st January), and finally, 
on the death of Sir Thomas Coventry, received the great seal 
(23d January, 1639), with the tide of Lord Keeper. Shortly 
afterwards he was created Baron Finch, of Fordwich in Kent, 
which was a manor he purchased about the same time from his 
first cousin. Sir Thomas Finch of Eastwell, subsequently Earl 
of Winchelsea. He did not, however, enjoy the honours of his 
high station very long. In December following, a committee of 
the house of commons was appointed to prepare articles of high 
treason against him, on account of many attacks which he was 
charged with having made upon the liberties of the people ; but 
chiefly of his corrupt and arbitrary conduct in the case of the 
ship money, which he had not only himself pronounced to be a 
legal tax, but by dint of threats and persuasion had prevailed on 
all the other judges, with the exception of Hutton and Croke, to 
sanction with their authority. " He pursued his hatred to the 
fountain of justice," Lord Falkland said of him in the course 
of the proceedings, " by corrupting the streams of it, the laws : 
and pexi'erting and corrupting the judges who administered it. 
He endeavoured to annihilate the ancient and notorious peram- 
bulations of particular forests, the better to prepare himself 
for annihilating the ancient and notorious perambulation of the 
whole kingdom, the metes and boundaries between the liberties 
of the subject and sovereign power, to bring all laws from his 
majesty's courts into his majesty's breast. He gave our goods 

* See ante, p. 36. 



62 LORD NOTTINGHAM. 

to the king, our lands to the deer, and our liberties to the 
sheriffs : so that there was no way by which we had not been 
oppressed and destroyed, if his power had been equal to his will, 
or his majesty's will had been equal to his power." Before the 
house proceeded to any resolutions against him, Lord Finch pro- 
cured the favour of being heard in explanation or extenuation of 
what he had done ; but neither his eloquence nor his show of 
humility before the representatives of the people availed him; 
and immediately after he had withdrawn they pronounced him a 
traitor. The next day ('22d December), Lord Falkland was sent 
with a message to the house of lords to impeach him ; but in 
the mean time he had quitted the country in disguise ; or as 
Whitelocke piirases it, " he got up earlier, gave them the slip, 
and escaped into Holland." He remained in exile about eight 
years, when, by sacrificing a large sum of money, as a composi- 
tion for his estate, he procured permission to return to England, 
and spent the remainder of his life in retirement. He died on 
the 30th of November, 1660 (the year of the restoration), at 
the house he inherited from his father, and is buried in the 
church of St. Martin at Canterbury, in which parish the Mote is 
situated. As he left no issue, this branch of the family of Finch 
became extinct, and with it the barony of Finch of Fordwich. 
Sir Heneage Finch, Recorder of the city of London in the 
time of James the First, was the fourth son of Sir Moyle 
Finch of Eastwell, and consequently first cousin to this lord 
keeper. He was autumn reader of the Inner Temple in 1620, 
and the year afterwards took the degree of serjeant-at-law. In 
1626, he was elected Speaker of the second parliament of 
Charles I. (he had also sat in the previous one, as well as during 
the reign of James), and in that capacity presented the petition 
of the house of commons to the king for the removal of the 
Duke of Buckingham. The fact of his having occupied two 
such offices as those of recorder of London, and speaker of the 
house of commons, is quite sufficient proof that he enjoyed 
considerable reputation in his day as a lawyer; for neither office 
was conferred in those times, but on those who had attained 
celebrity in the legal profession, a practice first broken in upon 
with regard to the speakership during the reign of Charles the 
Second, in the case of Sir Edward Seymour. From the warmth 



LORD NOTTINGHAM. 63 

with which Sir Heneage Finch pleaded in behal^of Bacon, when 
the proceedings were instituted against him for bribery (1620), 
denying both the competency and the credibility of the testimony 
that went to criminate the Chancellor, and strongly endeavour- 
ing to dissuade the house from prosecuting the charges they had 
preferred, we are inclined to think he must have been his per- 
sonal friend. The principal speech he made on this occasion 
was answered by Sir Edward Coke. We have nothing further 
to say of this Sir Heneage Finch, than that he appears to have 
been a man of considerable wealth, as well as learning and sta- 
tion ; for one of his residences was Kensington Palace, which 
was afterwards sold by his grandson to William the Third. 
We now pass on to his son, Heneage, Earl of Nottingham, and 
Lord Chancellor of England, of whose history we purpose to 
give a somewhat more detailed account. 

We have not been able to ascertain the place of this great 
man's birth ; but in the absence of precise information we are 
willing to adopt the supposition of Anthony Wood, that it was 
Eastwell, in Kent, if indeed it be not more probable that London 
may claim him as a native. He was born on the 23d of De- 
cember, 1621. Of his education we learn nothing more than 
what is recorded in the Athenae Oxonienses, that he had it first 
at Westminster school, and that he entered as a gentleman com- 
moner at Christ Church, Oxford, in Lent term, 1635 ; a year, 
by the way, memorable in the annals of the University, as the 
one in which John Milton and Jeremy Taylor, both Cambridge 
men, were incorporated masters of arts in it. At Christ Church 
he remained either two or three years, but it does not appear 
that he took any degree there. The death of his father, the 
recorder of London, had by this time left him not only his own 
master, but master of the paternal property ; so that having 
become in every sense an independent man, except in so far as 
he was held in thraldom by the fetters of academical discipline, 
he may have been impatient to emancipate himself from this 
restraint, and to enter at once upon the world. But if this 
natufal eagerness to begin life, as it were, upon his own account, 
was in reality his motive for quitting college before the usual 
time, it was evident he did not look forward to the course of 
mere idleness and dissipation which had so many charms for the 



64 LORD NOTTINGHAM. 

wealthy young cavaliers of his day ; for he entered of the Inner 
Temple as early as the year 1638 (Nov. 26th). 

It seemed not unlikely that his thus embarking in the profes- 
sion of the law was a step recommended to him by his cousin, 
who was at that time chief justice of the Common Pleas ; and 
we may also fairly presume that at the beginning of his new 
career he received advice and assistance in his studies from the 
same quarter. But unfortunately we have little better authority 
than surmise for this or any other particular connected with his 
reading, or his mode of life, either as a student, or even during 
the period he was practising outside the bar. It is not until 
after the time when he took office, and became in some sort a 
public man, that we can find any notices of him in the various 
memoirs and diaries which his contemporaries have produced in 
such abundance ; and even then, although, either as regards the 
private character of individuals, or the manners and habits of 
particular classes of society, no period of our history has been 
better and more fully illustrated than that during which he 
flourished, there are scarcely any accounts extant concerning 
him which throw a light on his private history. Frequently 
and much have we had occasion to regret that he had no gossip- 
ing brother at hand, to give us, in the inimitable manner of 
Roger North, all the minute details of his every day existence, 
which impart such an interest and such a charm to that most 
amusing (and therefore best) of all biographies we have any 
knowledge of, the life of Lord Guildford. We should then, no 
doubt, have known what chamber he tenanted ; whether he 
used the commons in hall morning and evening, or whether, 
having the means of indulging his tastes, without restraint, a 
petit supper and a bottle always pleased him ; with what degree 
of diligence, and after what method, he pursued his studies ; 
how his hours of relaxation were disposed of; whether he was 
a^clubster listed am,ong good fellows," or passed his spare 
time in a solitary walk ; whether he dressed after the fashion of 
the courtiers, " topping the mode," as some of his fellow 
Templars were wont to do, or contented himself with the more 
grave and beseeming apparel enjoined by the rules of his 
society, or like Hale, paid so little attention to his outward ap- 
pearance as to be held a fit subject for capture by a roving press- 



LORD NOTTINGHAM. 65 

gang. As the case stands at present, we must make np our 
minds to remain in ignorance of such matters as these. All we 
can tell of the most important of them, namely, his habits of 
study, is, that he adopted the practice which was common in 
his day among the students in the Temple, of assembling to- 
wards evening in the cloisters, to exercise themselves in putting 
and answering cases. Of this mode of legal discipline, he 
seems to have had as high an opinion as Lord Guildford, who 
used to say, no man could be a good lawyer, that was not a 
good' put-case ; but from all we can gather, Finch considered it 
chiefly valuable, inasmuch as it tended to promote fluency of 
speech, and especially readiness of reply. It was a common 
maxim of his uncle Sir Henry Finch, and there is reason to 
believe he adopted it himself, that a lawyer ought to read all the 
morning, and talk all the afternoon. He probably looked upon 
these public disputations as having the same kind and the same 
degree of advantage that may be derived from attendance on the 
various legal debating societies which, in our day, have super- 
seded the daily case-puttings in the Temple cloisters. Be this 
as it may, it is certain that he considered such meetings as pro- 
ductive of great benefit to the students; and when, upon the 
destruction of the old cloister walks, as they were then called, 
by the fire of London (1666), the benchers of the Middle 
Temple made application to him to procure the assent of his 
own society, the Inner Temple, to a plan they had designed for 
building chambers upon the same site, he gave them a peremp- 
tory refusal, solely because he would not be accessory to throw- 
ing any impediment in the way of the ancient and useful prac- 
tice of putting cases. Upon this, the project was relinquished ; 
and Sir Christopher Wren, being employed to re-construct the 
buildings consumed by the fire, contrived to accommodate all 
parties, by replacing the old cloisters with the addition of the 
upper stories, as they remain to this day. 

There was another mode of legal study, much in use in those 
days, and one which was commonly resorted to within the recol- 
lection of many persons now living; namely, a frequent attend- 
ance upon the courts of law, for the purpose of noting down any 
cases of importance that might occur. Of such means of acquir- 
ing information Finch did not fail to avail himself, and he con- 



66 LORD NOTTINGHAM. 

tiiiued to do so during the period, which is now the only one 
generally so employed; that is, for some time after his call to 
the bar. Many years afterwards, when he had become lord 
chancellor, he himself informed one of his acquaintance that he 
had been prese\^t at the trial of Archbishop Laud, before the 
House of Peers, which took place while he remained a student ; 
and it is from him we learn, that the argument delivered upon 
that occasion by Mr. Heme, behind whom he took up his place 
at the bar of the house, was drawn up by Hale. We also find 
in a manuscript work of his (which we shall have more to say 
of hereafter) a reference to a case, heard in Michaelmas term, 
1656, and reported among his notes of that time; which shows 
that he continued the practice of drawing up reports for his own 
use, at least tilhTery near the Restoration. The reference is in 
these words : " Vide mes notes, in diehus illis.^^ Were any 
other proofs wanting of the fact, that he was all along a diligent 
student, a fact some may think sufficiently attested by his sub- 
sequent celebrity as a lawyer, we should find one in the date of 
his call to the bar, which was the 30th of January, 1645. At 
this time he was of very little more than six years' standing on 
the books of the Inner Temple, and as seven years was the 
regular period of probation then allotted, it is to be presumed 
that the shortening this term in his case, or calling him ex gratia, 
as it was then called, was a favour conceded to him only on 
account of his proficiency in knowledge of the law ; wliich pro- 
ficiency, be it remarked, this society had full means of appre- 
ciating, by the examination which candidates for the bar were 
then required to pass through. In the same manner. Coke, 
who was entered of the Inner Temple very shortly after this 
rule of the house as to examination had been made (the order is 
dated 2nd May, 6 Eliz.), was called at the expiration of six 
years after his admission, though at that time the regular term 
of studentship was eight years. 

Much about the same time, as nearly as we can calculate, 
that Finch first put on his bar gown, he took to himself a wife. 
She was the daughter of Mr. William Harvey, a merchant of 
London, whom we suspect to have been related to the Daniel 
Harvey, also a London merchant, who first introduced Lord 
Clarendon, then Mr. Edward Hyde, a young lawyer, to the 



LORD NOTTINGHAM. 67 

notice of the Archbishop Laud, as may be seen in Clarendon's 
Life. What became of Finch immediately after this double 
change of his situation, we have not been able to ascertain. We 
have no better ground for conjecture as to whether he joined the 
king and the royalists, or remained in London without taking 
any active part in the great struggle then pending, than the 
simple circumstance of not meeting with any mention of his 
name in the records of those troublous times ; from which we 
draw the inference that he was probably at that time wholly 
occupied by the peaceful duties of his profession. It is certain, 
at all events, that in politics he was a royalist, if not a very 
zealous one ; and it is therefore to be supposed, that while first 
the Long Parliament, and then Cromwell, were rulers of the 
nation, he would rather avoid than court such opportunities of 
entering upon pubUc life as might have brought him forward 
into much notice, and consequently made him a person of suffi- 
cient importance to find a place in the histories of that time. 
As soon, however, as there appeared a reasonable prospect of a 
restoration, the case was entirely changed. Upon the assem- 
bling of the Convention Parliament, he became a candidate for 
a seat, and was returned at the same time for two places, the 
borough of Michael in Cornwall, and the city of Canterbury. 
As the representative of the latter, for which he made his elec- 
tion, he was called upon to express the sentiments afterwards set 
forth (May Uth, 1660) in the address entitled "A declaration 
and vindication of the loyal-hearted nobility, gentry, arid others 
of the county of Kent and city of Canterbury, that they had no 
hand in the murther of the king;" wherein it is set forth, that 
" the generality, and as for the number, much the greater, so 
also for the quality, much the better part of this famous and 
populous county and city, hath, from the alpha to the omega, 
from the first to the last, of these distracted, distempered, and 
unhappy times, been truly cordial, constant, and steady, in the 
matter of their fidelity and loyalty to their prince and sovereign ; 
without the least thought or desire to deviate, apostatize, or turn 
out of the good old way of due allegiance." That the temper, 
indeed, of this parliament was altogether such as we find 
throughout the whole of this loyal effusion, is proved by the 



68 LORD NOTTINGHAM. 

headlong zeal with which they rejected Hale's proposal, of 
recalling the king under conditions. 

Immediately after the return of Charles the Second, Clarendon, 
who had been previously in correspondence with most of the 
leading men concerned in bringing about the restoration, was 
deputed by the king to fill up the legal appointments. Finch 
had a triple recommendation to the chancellor's notice, his 
ability as a lawyer, his zeal as a royalist, and his influence as 
member of a noble and powerful family; to which we have 
some reason to think may be added the further motive of a 
former friendship, or at least acquaintance. Accordingly, in 
consequence of some or all these qualifications, he was singled 
out to fill the office of Solicitor-General. His appointment 
took place on the sixth of June, 1660, at which time he received 
the customary honour of knighthood ; and on the following day 
he was created a baronet. The next year he was autumn 
reader of the Inner Temple. The entertainment he gave in 
commemoration of this latter solemnity stands upon record as 
one of the most magnificent that was ever furnished forth even 
in the Inns of Court, which in days of yore held no mean or 
inconsiderable station among the high places wherein the deities 
that preside over good cheer were wont to be most worthily and 
most sedulously worshipped. The feast lasted seven days. 
The prolongation of the festivities, however, was by no means 
an uncommon circumstance, nor indeed can we consider the 
number of guests entertained to be unprecedentedly great, since 
we find it recorded in Hall's Chronicle, that at the Serjeants' 
banquet given on St. Peter's eve, in the year 1540, not only the 
mayor and aldermen and a great number of the commons of the 
city of London were present, but also all the Lords and Com- 
mons of Parliament. But what distinguished this festival from 
all others that had been held in honour of any legal appoint- 
ments since the time of Henry VIII. (whose attendance with 
his Queen Catherine, at the Serjeants' feast kept in Ely-house, 
is especially commemorated by Stow, as that of Hei^ry VII. 
upon two similar occasions is recorded by Holinshed*) was the 

* We quote these authorities from Dugdale's .Origiiies Juridiciales, 
(p. 127) where the reader may find divers amusing instances of the 
wisdom of our ancestors, in believing and ordaining that sound learn- 



LORD NOTTINGHAM. 69 

presence of the King, who, to the honour, as we are told, of Sir 
Heneage Finch and the whole society of the Inner Temple, 
came in person to the banquet prepared on the last day (August 
15th), accompanied by the Duke of York, and a greater number 
of the nobility than we can afford space to name. Much might 
we rehearse, did we feel so inclined (for here the materials are 
not wanting) concerning the pornp and circumstance of this 
royal visit: how his majesty came from Whitehall in his state 
barge, and was received at the Temple stairs by Sir Heneage 
Finch, and the Chief Justice of the Common Pleas ; how he 
passed from thence, through a double file of the readers' ser- 
vants, clothed in scarlet cloaks and white doublets, whence 
taking his way through a breach made expressly for the occa- 
sion in the wall which at that time enclosed the Temple garden, 
he passed through a lane formed of benchers, utter barristers, 
and students belonging to the society, till he arrived at the Inner 
Temple hall, when the wind instruments that had been sounding 
ever since he set his foot on shore at the stairs, gave place to a 
band of twenty violins, which continued to play all dinner time. 
But besides the narrowness of our limits, which compels us to 
be brief in these matters, we have a certain consciousness that 
we could hardly compass a style sufficiently dignified to do such 
a subject full justice; and we dismiss it, therefore, with the 
modest excuse made by honest Master Gerard Leigh, in his 
* Accidence of Armory,' for the omission of some minor details 
concerning another solemn banquet, at which he was present, in 
the hall of the Inner Temple : "I assure you I languish for want 
of cunning, ripely to utter that I saw so orderly handled apper- 
taining to service ; wherefore I cease and return to my purpose." 
We will only add, that the Duke of York liked his entertain- 
ment so well as to become a barrister and bencher of the 

ing and copious feasting were necessarily inseparable. The provisions 
furnished forth at some of the Serjeants' feasts would have victualled 
the whole population of Ireland for a twelvemonth. Take, for exam- 
ple, that of 23d Henry 8, recorded by Stow, of which the bill of fare 
begins with such items as twenty-four great beefes, one hundred fat 
muttons, fifty-one great veales, &c. and finishes with thirty-seven 
dozens of pigeons, fourteen dozen of swans, and three hundred and 
forty dozens of larkes. 



70 LORD NOTTINGHAM. 

society in the following November, and that Prince Rupert, and 
several noblemen of distinction, were at the same time admitted 
members. 

In the parliament which was assembled the same year that 
Sir Heneage Finch became solicitor-general, he took his seat as 
one of the members for the university of Oxford ; but whether 
or not he took as active a part in the business of the house as 
when he was a representative of Canterbury, we have no means 
of knowing. The circumstance of his name being entirely un- 
noticed in the meagre records of the parliamentary history of 
that period, is certainly not decisive evidence of his having 
refrained from taking any share in the debates ; but it is perhaps 
sufficient to warrant the presumption that he was not then in the 
habit of putting himself forward as a speaker elsewhere than in 
the courts of law. There, however, his reputation as an orator 
was such that he was commonly called the English Cicero. 
Another title also generally bestowed upon him, that of the 
English Roscius, it is to be presumed, had relation more parti- 
cularly to the grace and propriety of his gesture, than to the 
powers of argument and command of words implied by the 
former designation. Evelyn bears testimony to his ability as a 
speaker. He has styled him in one place the smooth-tongued 
Solicitor ; and in an entry in his diary, under the date of October 
26th, 1664, he writes: "At the council I heard Mr. Solicitor 
Finch plead most eloquently for the merchants trading to the 
Canaries, praying for a new charter." That worthy and amusing 
gossip, Samuel Pepys,is doubtless a witness of less weight; but 
he also speaks distinctly to the fact. Finding space to record 
(among divers interesting particulars touching his own new suits 
of clothes, and the casual rents therein which so sorely troubled 
his spirit) something of certain proceedings instituted in the 
house of peers by Mr. Roberts, son of the Lord Privy Seal, he 
tells us^ (May 3d, 1664), "The cause was managed for my 
Lord Privy Seale, by Finch the solicitor ; but I do really think 
that he is a man of as great eloquence as ever I heard, or ever 
hope to hear, in all my life." To these accounts of his oratori- 
cal ability may be added the opinion of a much higher authority 
than either Evelyn or Pepys, namely, of John Locke, who was 
often heard to declare that he considered some of Finch's 



LORD NOTTINGHAM. 71 

speeches to be more correct in point of language, and more 
finished in style, than any compositions he was acquainted with 
in the English tongue. 

That this eloquence was not exerted on behalf of his consti- 
tuents, the members of the university, on a certain occasion when 
the interests of that body were involved, seems to be accounted 
by Anthony Wood a scandalous instance of remissness. " He 
did us no good," quoth the worthy antiquarian, " when we 
wanted his assistance for the taking off the tribute belonging to 
hearths." The punishment, however, which he incurred for 
such a very gross dereliction of duty, does appear to us to have 
been very far from immoderately severe, inasmuch as it consisted 
merely of a rebuke, which, although barbed and sharpened with 
all the keenness of university wit, a man of tolerable stoicism 
might have borne, we should conceive, without much wincing. 
The occasion fell out thus. While the parliament was sitting at 
Oxford, in 1665, on account of the plague which then raged 
violently in London, it was reported that many nonconformist 
divines, taking advantage of the absence of the regularly hcensed 
curers of souls (numbers of whom had hurried away from the 
head quarters of infection, wisely considering, no doubt, that by 
thus attending to the preservation of their own corporeal health, 
at such a critical season, they would secure to themselves enough 
of future opportunity for looking after the spiritual welfare of 
such sheep of their flocks as they might find alive in the field at 
their return), had thrust themselves into the vacant pulpits, and 
in the discourses which they delivered from thence had been by 
no means sparing in their strictures upon the lax morals of the 
court, for "the manifold sins of which, as some of them did not 
scruple to affirm, the heavy visitation of the pestilence had fallen 
upon the land. Upon becoming informed of this, the king and 
the court, instead of hug^ng themselves in silent congratulation 
upon the ease with which, by so simple a process as a "journey 
to Oxford, they had altogether evaded a punishment decreed 
entirely for their wickedness, took this explanation of the devout 
non-conformist in bad part ; and finding that these comments 
upon the manifest wrath of Providence, in respect of such evil 
doings, were commonly mixed up with unfavourable and irreve- 
rent comparisons between the existing state of things and the 



12 LORD NOTTINGHAM. 

state of things before the restoration, the loyal parliament re- 
solved upon delivering the people from the danger of listening 
to such unorthodox doctrine. This resolution of theirs produced 
the five-mile act, as it was called, whereby all ministers of reli- 
gion were forbidden to approach within five miles of the metro- 
polis, or of any city, borough, town, or church where they had 
before officiated, except such as would consent to take an oath 
that they would not attempt or encourage any revolution in 
church or state, and that they held it unlawful to take up arms 
on any pretext, either against the king or those commissioned by 
the king. During the discussions that took place in the Com- 
mons concerning this bill, we are told by Burnet that Vaughan, 
who afterwards became chief justice of the Common Pleas, pro- 
posed amending the last-mentioned clause by wording it " those 
legally commissioned by the king." Upon which, Finch repre- 
sented that such an alteration could not be necessary ; because, 
unless a commission was issued upon lawful occasion, and to 
persons lawfully competent, and altogether in due form of law, 
it would not be a legal commission ; and if not legal, it would be 
no commission at all. The act accordingly passed without this 
alteration. The university, it may be supposed, had not been 
indifferent to these proceedings ; and indeed they had drawn 
forth their weapons on the side of orthodoxy, under the guise of 
" Reasons concerning the solemn league and covenant, &c. made 
in 1647," for which friendly interference on their part, Sir 
Heneage Finch, and three other members of parliament, were 
deputed to give them the thanks of the Commons. On this oc- 
casion was delivered the solemn reprehension concerning his 
remissness in the matter of the hearth money. The honorary 
degree of doctor of civil law had just been conferred upon him 
in full convocation : " which creation being concluded," says 
Anthony Wood, " in the presence o^ several parliament men 
(besides the said four), the vice-chancellor stood up, and spoke 
to the public orator to do his office. Whereupon he maketh a 
most admirable harangue, and amongst other things to this effect, 
that the university wished they had more colleges to entertain 
the parliament-men, and more chambers, but by no means more 
chimneys, &c., at which Sir Heneage changed his countenance, 
and drew a little back." 



LORD NOTTINGHAM. 73 

During the time that Sir Heneage Finch filled the station of 
solicitor-general, it fell to his lot to conduct, on the part of the 
crown, several prosecutions, of more importance, or at least of 
more interest, than attaches to the generality of such proceed- 
ings. Such, for example, were the trials of the regicides, 
which occurred during the early part of his official career, and 
in which he is said to have displayed not only the same elo- 
quence, the same acuteness, and the same accuracy of legal 
knowledge he brought to the discharge of all his forensic duties, 
but a degree of zeal that fully proved him to be, as the phrase 
is, heart and hand in the cause he advocated. Nevertheless, it 
is but justice to him to remark, that he never went farther in his 
animadversions than his duty not only warranted him in doing, 
but even enjoined him to do ; although, even if he had over- 
stepped the bounds within which the calm judgment of an age 
remote from the time of the action might be inclined to restrain 
every thing like indignation and hatred against the judges of 
Charles the First, his excuse might be found in the exaggerated 
notions of loyalty and allegiance entertained by the royalists of 
that day. In the trial of Lord Morley for murder, before a 
select number of peers (1666), the substance of Sir Heneage 
Finch's speech for the prosecution has been recorded at con- 
siderable length. The case was entirely unconnected with 
political matters, and indeed is one of the many reported in the 
State Trials, which derive their chief value from the light they 
throw on the manners of different classes of society at various 
periods of our history ; a light scarcely less strong than that 
which other portions of the same work reflect ilpon the consti- 
tutional law of England. From the memoirs of Grammont we 
may learn how the fashionable character, as well as the finances, 
of an accomplished gallant in the court of Charles the Second 
could be improved by the practice of such barefaced cheatery as 
would now most assuredly cause the practiser, whatever might 
be his rank, to be kicked out of any gaming-house in London; 
but it is to the records of trials like those of Lord Morley, Lord 
Cornwallis, or Lord Pembroke, that we must resort, if we 
would see how peers of the realm were wont to pass their even- 
ings in frequenting taverns, and making up or engaging in such 
drunken frays as are now chiefly confined to the denizens of St. 

6 



74 LORD NOTTINGHAM. 

Giles's, and are recorded in ihe annals of Bow-street. All of 
these noblemen were avraigned for murders committed under 
circumstances like these; the first for stabbing the man he had 
quarrelled with, in memory of an old grudge, the second for 
being accessary to an unprovoked outrage upon a poor boy in 
the park, which caused his immediate death, and the third for 
knocking down an acquaintance, who at the time was powerless 
with intoxication, and trampling upon him till he left him in 
such a state that he expired shortly afterwards. That Lord 
Morley was guilty of the crime imputed to him we think it im- 
possible to doubt. In Lord Pembroke's case there certainly was 
doubt, and he was of course entitled to the advantage of it ; but 
in one and the other case the verdict was the same, namely, 
manslaughter, which by virtue of the privilege of peerage was, 
in all respects, tantamount to an entire acquittal. If this require 
any comment at all, a passage from Sir Heneage's speech on 
Lord Morley's trial is the best we have to offer. " I do not 
presume to say that the killing of a man is more capital in the 
case of a peer than of a private gentleman ; but I affirm that no 
provocation in the world can make that to be but manslaughter 
in a peer, which would be murder in a gentleman. The quality 
of the offender may serve to enhance the crime ; but since the 
world stood, it was never accounted a diminution of it, or an 
apology for committing it. The same duty to the king, the 
same obedience to the laws, the same reverence for human 
nature, the same caution to avoid the effusion of Christian blood, 
is expected from a lord as from the meanest commoner in Eng- 
land. It is the case of all the people of England, who are 
highly concerned in the present example.- If they put their trust 
in the law, as the greatest avenger of blood in the world, and 
once find themselves deceived, who knows what consequences 
may follow — what feuds in families — what massacres, it may 
produce ? No doubt but all the world will observe and mark the 
issue of this day : they will be curious to know what became of 
a lord, in whose eyes the blood of a gentleman was so vile and 
inconsiderable." 

The author of the meagre and incorrect publication bearing 
the title of "Lives of the Chancellors," whom Roger North, by 
the way, has no scruple in designating as a foul libeller, seems 



LORD NOTTINGHAM. 75 

to throw out a hint that Sir Heneage Finch made himself par- 
ticnkrly busy among those who got up the impeachment against 
Clarendon (1667), the year after Lord Morley's trial. We find 
.nothing upon record that goes, in the slightest degree, towards 
bearing out the truth of this. There are, indeed, in the parlia- 
mentary history, notices of various speeches delivered by him in 
the House of Commons on this occasion ; but they are all en- 
tirely confined to the discussion of the legal points that arose in 
the course of tl^e debate ; and therefore, for any thing that there 
appears, he took no further share in these proceedings than what 
necessarily devolved upon him as the duty of a law officer of 
the crown. Nor do we conceive it to be at all probable that he 
could have entertained any feeling short of disapprobation, not to 
say disgust, with respect to this impeachment. The motives of 
it were no secret to any one. It was not that there was any 
belief, or indeed any suspicion, of Clarendon's having really be- 
trayed the king's counsels, advised him to lay aside parliaments, 
or being guilty of bribery and extortion in his office. These 
might do very well to put together as particular articles, after the 
Lords had refused to commit him upon an accusation of treason 
couched in general terms. But no one was ignorant that the 
crimes he had committed, and for which he was arraigned, were 
of a far diff*erent nature ; that they consisted in his having pre- 
vented the settling of a greater revenue on the crown, striven to 
uphold the interests of the Church of England, and above all, 
rendered himself displeasing, by the gravity and the decency of 
his deportment, to a set of ministers far more influential than 
himself, namely, the nymphs of the royal harem, and to the 
bashaw whom they duped and governed. It was notorious with 
what anxiety the mean and selfish sensualist, whom it was his 
misfortune to serve, was waiting for the removal of one whose very 
presence was a constant rebuke to him. Every one knew what 
pleasure he had taken in encouraging his pandars and his buf- 
foons to practise their vulgar mimickry of the absent chancellor's 
gait and gestures ; and how, when such a truly dignified and 
royal mode of expressing contempt had failed to drive the object 
of it from the court, his majesty had tampered with members of 
the House of Commons to bring about an impeachment. Now, 



76 LORD NOTTINGHAM. 

certainly, on no ground of probability can il be supposed that a 
man like Sir Heneage Finch, who there is every reason to be- 
lieve was on friendly terms with Clarendon, whose character 
and whose principles were similar to his, and who, at all events, 
loyal subject as he was, never stooped so low as to be the tool 
and the creature of his sovereign, could further, or in any degree 
countenance, an accusation got up from such motives and under 
such auspices as these. 

When the death of Sir Geoffroy Palmer left the post of 
attorney-general vacant. Sir Heneage Finch was promoted to it 
as a matter of course (May 10th, 1670), and Sir Edward 
Turner, at that time Speaker of the House of Commons, re- 
placed him as solicitor. This latter office was filled, on Sir 
Edward's being appointed chief baron of the Exchequer about 
six months afterwards, by Sir Francis North, who thus first 
struck into the wake of Finch's course. Of the manner in which 
the latter discharged the duties of his new station, which we can 
easily conceive to have been, in those day^, as Roger North in his 
Examen phrases it, very " nice and fatiguesome," we have the 
following account from the Duke of Wharton. " While at- 
torney, he was no ways honoured by his office, but was an 
honour to it ; for he never lessened the business and reputation 
of one place to advance to another. He came always to the hall 
attended suitably to his dignity ; and the greatest respect and 
deference were ever paid to him ; for indeed he added lustre and 
grace to the place he filled." This sort of general panegyric, it 
is true, gives us little or no insight into particular facts, so that 
we have not the means of judging for ourselves how far they 
may be strictly consonant to truth. But we may remark that in 
this particular case there is no reason to suspect the author of 
being biassed, either by private feelings, or by the spirit of party. 
Now the latter of them has most certainly tinctured the portrait- 
ure of the same character as it is drawn by Burnet ; and though 
perhaps the authority of the Duke of Wharton (the very type and 
personification of all moral inconsistencies, if we are to take 
Pope's sketch of him for a correct likeness) might not be thought 
sufficient to set in counterpoise, on any indifferent point, to that 
of the Bishop of Sarum, yet whenever the political prejudices 



LORD NOTTINGHAM. 77 

of the churchman are to be put into the balance, there certainly 
requires no very great weight on the opposite side, to make his 
testimony kick the beam. 

These remarks are not made because of any discrepancy be- 
tween the duke and the bishop as to that portion of Finch's life 
during which he was attorney-general, for that the latter has not 
commented upon at all; but because we shall shortly have occa- 
sion to quote their respective opinions on his general character. 
There is one assertion, however, made by Burnet, respecting his 
conduct in the House of Lords, after he had received further 
promotion, which may equally apply to him at this period, 
namely, that he always thought it incumbent on him to be the 
apologist of the court in parliament. Now, whatever indigna- 
tion or contempt we may feel with regard to many both of the 
men and the measures of that court, we must bear in mind that 
there were then, as now, but two parties, namely that of the 
government, and the one opposed to it : and that seeing there 
was no middle course to be steered, whoever enlisted himself 
under the banner of either, was bound as a party-man to tolerate 
much that he might not approve. To say, therefore, that Finch, 
or any other, took an active instead of a passive part in the 
endeavour to palliate abuses, which it is possible he may 
have inwardly condemned quite as much as those who railed 
most violendy against them, is to say nothing more than that he 
courted the post of difficulty and danger : that being faiily com- 
mitted to his party, he chose to fight in the foremost rank of it, 
rather than remain among the suders and the camp followers, a 
mere numerical unit in the array, and nothing more. 

Taking this view of the case, which we are inclined to think 
every one acquainted with the machinery of party will allow to 
be a fair one, we can easily account for the part borne by Finch, 
while attorney-general, in the discussions in parliament relative 
to the Coventry Act (1670). No attempt was made by him, or 
by any other member, to excuse, or even to palliate in the 
slightest degree, the dastardly and inhuman outrage committed 
on the person of Sir John Coventry. That a member of the 
House of Commons should be waylaid and maimed by the hire- 
ling bravoes of the court, because he had uttered a very harm- 
less, if not a very dignified, jest upon the sovereign's amorous 



78 LORD NOTTINGHAM. 

propensities, was enough to have excited the indignation even of 
the subjects of the Dey of Algiers ; and in this country, even in 
an age when a Rochester could walk the streets unhooted and 
unscourged, after bribing ruffians to cudgel such a man as 
Dryden, assuredly no voice could have been lifted up in ex- 
tenuation of such an enormity. All that Sir Heneage Finch 
attempted to do, was to postpone the discussions relative to the 
subject until the supplies had been passed ; and failing in this, 
to introduce such modifications into the cutting and maiming, or 
Coventry Act, as in his capacity of legislator appeared to him 
expedient for the future prevention or punishment of similar 
atrocities. Without doubt, he would have acted with more dig- 
nity as an independent member of the house, had he taken up 
the matter with the warmth or indignation it deserved : but an 
officer of government, of such a government, especially, as that 
of Charles the Second, is not and cannot be an independent 
member. 

In 1671, Sir Heneage Finch was appointed Speaker for the 
House of Commons, in the different conferences that took 
place with the Lords, during the controversy touching the right 
of the latter to make amendments in money bills ; and on this, 
as on other occasions, he distinguished himself by the zeal and 
the ability with which he advocated the privileges of the repre- 
sentatives of the people. That he did not, however, think it 
incumbent on him to support every captious and frivolous 
enforcement of those privileges, is apparent from his joining 
with the veteran Serjeant Maynard, in proposing that the 
charges attempted to be brought forward against the Earl of 
Orrery should be left to a trial at law ; by the carrying of which 
proposition, the old nobleman was enabled to fulfil the boast he 
had made when hobbling up the steps of the house, namely, 
that if his gouty legs would but carry him up, he would engage 
his head should bring him safe down again. The name of Sir 
Heneage Finch is also to be met with in most or all of the im- 
portant debates that occurred while he remained attorney-general ; 
and so far as we can judge fiT5m the brief record of the parlia- 
mentary history, the House of Commons did not contain during 
thai time a more active or a more efficient member. Whether 
it was while he remained in the lower house, or aftei he 



LORD NOTTINGHAM. 79 

removed to the peers, that he drew up for his own use a work 
concerning the authority of parliament, we cannot undertake to 
say; but that he did so at some time or other, appears clearly 
from a passage in case 160 of his manuscript Chancery Reports. 
We should have been inclined to think that the book alluded to 
was merely a collection of notes, touching important cases 
decided in his time, before either house ; but the manner in 
which it is quoted with a reference to a particular title, seems to 
show that it was a systematic treatise, arranged methodically 
under different heads. The passage in which it is mentioned is 
in these words : " I took this occasion to show that the Court of 
Chancery hath always had an Admirall jurisdiction, not only 
per viam appellationis, but per viam evocationis too, and may 
send for any cause out of the Admiralty to determine it here, of 
which there are many precedents in Noy's MSS. 88, and in my 
little book, in the preface De Officio Cancellarii, sect. 18, and in 
my Parliament Book, in 8, title Admiralty." 

Towards the close of the year 1673, when Lord Shaftesbury 
was removed from the woolsack, the Seal was delivered to Sir 
Heneage Finch as Lord Keeper. There is a curious memo- 
randum respecting this change, at the beginning of Mr. Har- 
grave's copy of the manuscript reports just mentioned ; which, 
as it may be considered in some sort a scrap of autobiography, 
we shall here transcribe at length : — 

"Sunday, 9th November, 1673. At six at night, I received 
the great seal from his Majesty at Whitehall, and was made C. 
S. — 10th. 1 recepi'd my Lord Shaftesbury's pattent, which 
came to me from the privy seal. It was reported, his lordship 
kept the bill signed by him above a year and a half, for it was 
. signed before he was chancellor as is said, and never meant to 
send it to the seals till there was great necessity, and so hath 
covered all his misdemeanors as chancellor. But this was a 
malicious report to his prejudice and mine, as if he had been 
false, and I too easy in this matter ; for in truth, the pardon did 
extend to the 6th of November, which could not possibly be by 
virtue of any old warrant ; but the chancellor foreseeing his fall 
obtained a warrant for a new pardon, signed by Mr. Secretary 
Coventry, and Mr. Solicitor North passed it upon Saturday the 
8th of November, and his lordship intended to have sealed it as 



80 LORD NOTTINGHAM. 

chancellor, for the privy seal was directed to him by that name ; 
but it was razed in the king's presence aijd directed to me by 
name, with a nuper cancellarius interlined where it mentioned 
him. Also, I sealed a commission to the judges and master of 
the rolls to hear causes, for by the change of the C. or C. S. the 
commission fayles. — 11th, I took my seat, and was sworne in 
chancery; but I made no speech, as some of my predecessors 
have done, upon the occasion." 

He presided in this court, first as Lord Keeper, and afterwards 
as Chancellor, about nine years ; and during that time, it is not 
too much to say that he acquired such a reputation for learning, 
for ability, and for integrity, as no judge that ever sat there before 
him has surpassed. Of his learning and his diligence in this 
capacity, several splendid monuments are still preserved. The 
principal one is the collection of reports of all the cases decided 
by himself while he sat on the bench, beginning with November, 
25 Car. II. (1673), and ending in October, 34 Car. II. (1682). 
So far as we are able to learn, the original in his own hand- 
writing has not been preserved, but the copy of it which is still, 
we believe, in the possession of. the Legge family, appears from 
the edge of the paper and the colour of the ink to have been 
made very shortly after his death. This copy was devised by 
his son, the Earl of Aylesford, to Baron Legge, whose mother, 
the Countess of Dartmouth, was a daughter of the same Earl of 
Aylesford, and consequently granddaughter to the author of the 
reports. A second copy was made from this (in four folio 
volumes, now bound up in two) at the cost and under the imme- 
diate superintendence of that most learned, acute, and indefati- 
gable lawyer, the late Mr. Hargrave ; and as he spared no pains 
to collect authentic documents from other sources, his collection 
(which by the kindness of his son and representative now lies 
before us) is in many respects more complete than the one 
bequeathed to Baron Legge. It does not, indeed, contain the 
work in thirty-one chapters, entided Prolegomena, occasionally 
also referred to by the author, as " my little treatise of chancery 
learning," and "my little book ;" nor the collection of rules and 
orders in chancery, with observations thereupon,* both of which 

* The following is the title of this manuscript : — " A system or collec- 
tion of such rules and orders ia Chancer}'- as have at any time hereto- 



LORD NOTTINGHAM. 81 

are in the Dartmouth copy ; but the former of these has been 
copied by Mr. Hargrave with his own hand, and forms of itself 
a thin folio volume of close writing. How far he has thought 
fit to alter the language of the original, and what Was his opinion 
of the value of the work, may be seen by the following memo- 
randum, written on the fly-leaf of this volume, and dated 23rd 
September, 1797. " In this copy of Lord Chancellor Notting- 
ham's Prolegomena, I have adhered closely to Mr. Heneage 
Legge's copy, except that I have avoided the numerous abbre- 
viations in the latter, and that I have translated all the French 
words, and so made what was almost throughout a mixture of 
French and English, entirely English.* The whole of this 
copy, except a few lines in page 2, is in my own hand-writing. 
But from the interesting and valuable nature of the contents, I did 
not feel the labour of copying and translating as any fatigue." 

Besides these speaking testimonies to the learning and the 
diligence of this great man, there exist, as we probably need not 
remind many of our readers, several volumes in which his deci- 
sions have been partially collected. Such is the folio published 
in 1725, under the title of Reports tempore Finch, which is a 
selection made by a practising barrister in the Court of Chan- 
eery, of cases wherein the reporter himself was counsel. This 
work begins with Michaelmas term, 1673, that is, with the be- 
ginning of Sir Heneage's Lord Keepership, and goes down to 

fore been printed or pubUshed, together with some explanations and 
alterations thereof, and additions thereunto, as also some observations 
what rules have lately been discontinued, and yet may be fit to be re- 
vived, and what are fit to be laid aside. By F. — C. S." These two 
letters C. S. (cuslos sigilli) show that the work was drawn up after his 
becoming Lord Keeper, and before he was made Chancellor; that is, 
between Nov. 1673, and Dec. 1675. 

* We transcribe two or three of the titles to different chapters in the 
Prolegomena, by way of showing how French, English, and Latin are 
blended together. To account for the use of such a piebald style, it 
must be recollected that the book was written solely for the author's 
private use, and that this sort of mixture was a dialect perfectly fami- 
liar to the lawyers of those days. " Chap. 6. Equity versus Purchasor 
ne sera. 7. Equity relieves en plusors cases I'ou les printed livres 
deny it. 12. Of trusts in general, quid sint. 30. De anomalies. 31. 
L'ou les juges del common ley ont agreed to alter it sans act de parle- 
ment, et l'ou nemy." 



82 LORD NOTTINGHAM. 

Michaelmas term, 1G80. It is remarkable for one peculiarity 
which we never have met with in any other English book of 
Reports ; namely, that whenever the rule laid down or relied on 
by the judge differs from the corresponding rule of the civil law, 
the difference is noted in the margin. There is also an anony- 
mous octavo volume, dated 1G94, and entitled " Reports of Cases 
taken and adjudged in the Court of Chancery, from the 20th 
year of King Charles the Second to the first year of their present 
majesties, King William and Queen Mary," which is in fact a 
continuation of a similar collection, published a year before, of 
particular cases from the beginning of Charles the First's reign 
to the twentieth of Charles the Second. This second volume 
contains, of course, a number of cases decided by Finch. The 
only other work of the kind we shall mention is a black-letter 
folio published in 1697, under the name of " Cases argued and 
decreed in the High Court of Chancery, from the twelfth year 
of Charles the Second to the thirty-first." Nearly half of this 
book is occupied by the decisions of Finch. From a manuscript 
note written by the late Mr. Hargrave in his copy of the volume, 
(which is at present in the British Museum,) we learn that it 
was compiled from the papers of Sir Anthony Keck, one of the 
commissioners of the great seal, and that Lord Chief Baron 
Ward, in his manuscripts (case of Packington v. Wyche, A. 4. 
Scaccar. May 23, 1709), quotes the work by the title of Keek's 
Reports. There is a second part of the same work, which car- 
ries the cases down to the fourth of James II. 

From all or any of these collections, the best and most ample 
testimony can be obtained as to Finch's legal learning. With 
respect to the mode in which he conducted the business of his 
court, there is less certainty of being able to form an accurate 
opinion, not so much because the accounts we have are conflict- 
ing, as because they are given in such loose and general terms 
as to afford no handle for an examination into their probable 
fairness and truth. The Duke of Wharton has made it the sub- 
ject of a warm panegyric, but vague praise such as this is ordi- 
narily little less suspicious than vague censure ; or, at all events, 
seldom bears such an evident impress of truth, as to banish all 
doubt of its being fully deserved. We are indebted to this writer, 
however, for the mention of one circumstance, which indeed 



LORD NOTTINGHAM. 8S 

might safely be inferred from what can be gathered elsewhere as 
to his general assiduity, namely, that he invariably displayed the 
greatest anxiety for the despatch of the business of the court, 
wherein it appears delay was not a whit less common at that 
time than at the present day. A case was once brought before 
him for a rehearing, which had been altogether upwards of thirty 
years travelling the slow road of chancery litigation. On being 
informed of this fact, he instantly appointed a day for it to be 
argued, and declared he would rather sit for five or six days 
together, than suffer the court to remain any longer under the 
disgrace of protracting a cause for such a time. Nor was this 
the shallow boasting of a vain-glorious man, greedy of popular 
applause, and seeking to be trumpeted forth in parliament or by 
the press as the great reformer of abuses encouraged by his pre- 
decessors : so far was Sir Heneage Finch from any such feeling 
as this, that he has even been accused of a propensity any one 
would make it a point to eschew, who had it at heart to gain 
the sort of ephemeral popularity that may be thus acquired : his 
great anxiety was to weigh and perpend most carefully and ela- 
borately, before he struck the balance. '* He was a formalist," 
says Roger North, " and took pleasure in hearing and deciding, 
and gave way to ail kind of motions the counsel would offer; 
supposing that if he split the hairs, and with his gold scales de- 
termined reasonably on one side of the motion, justice was nicely 
done. Not imagining what torment the people endured who 
were torn from the laws, and there [in equity] tost in a blanket." 
How far he prosecuted this amusement of tossing in the blanket 
to the prejudice of graver duties, may be in some degree esti- 
mated by the number of important cases finally adjudged by him 
while he sat on the bench. Those which are contained in his 
reports amount in all to eleven hundred and seventy. 

He has been eulogized for the dignity with which he kept up 
the state of his high oflice ; a matter of no small consideration in 
those times, when every judge, at least if he were of the coif, 
was attended to court, on first taking his seat, by all the barris- 
ters and students of the inn of court to which he belonged, besides 
officers, clerks, and retainers of all sorts, forming such a crowd 
as made the procession compete, in point of the numbers that 
formed it, if not in pageantry, with the solemn pomp of a lord 



84 LORD NOTTINGHAM. 

mayor's show. In this respect, as well as in many others, his 
conduct formed a striking contrast with that of his predecessor, 
Lord Shaftesbury, who was wont to take his seat clad in an ash- 
coloured gown laced with silver, and having his nether person in- 
vested in a pair of full-ribboned breeches; indeed, as Roger 
North somewhat indignantly observes, with nothing black about 
him but his hat. Bearing in mind, no doubt, the luckless upshot 
of this popular Chancellor's memorable equestrian parade, when 
" from want of gravity in the beasts, and too much in the riders," 
Judge Twisden had been laid sprawling in the dirt, and many 
other weighty dignitaries of the law had been fain to exhibit 
themselves in little less dignified postures. Lord ChancelJfbr Finch 
obliged all such officers as could afford it to attend him in their 
coaches. " He had no pimps, poets, and buffoons," adds Whar- 
ton, " to administer to pleasure or flattery. His train was made 
up of gentlemen of figure, men of estates, barristers-at-law, and 
such as had reputation in the profession and were suitable and 
becoming so high a station." 

A much more essential point than this in his character as 
Chancellor, was the conscientious impartiality with which he 
invariably distributed the church preferment that fell to his gift. 
In bestowing it he commonly deferred to the opinion of his chap- 
lain. Dr. Sharp, afterwards archbishop of York ; whom he con- 
sidered more competent than himself to exercise the duty of 
judicious selection. How deeply he was impressed with the 
sense of the importance of this duty will best be shown by the 
following eloquent passage of a letter addressed by him to his 
chaplain on this very subject. " The greatest difficulty I appre- 
hend in ray office," he writes, " is the patronage of ecclesiastical 
preferments. God is my witness, that I would not knowingly 
prefer an unworthy person ; but as my course of life and studies 
has lain another way, I cannot think myself so good a judge of 
the merits of such suitors as you are. I therefore charge it upon 
your conscience, as you will answer it to Almighty God, that, 
upon every such occasion, you make the best inquiry, and give 
me the best advice you can, that I may never bestow any favour 
upon an undeserving man ; which if you neglect to do, the guilt 
will be entirely yours, and I shall save my own soul." 

Having thus pointed out what appear to us the most striking 



LORD NOTTINGHAM. 85 

particulars of this great man's general merits as a Chancellor, 
we may now present the picture of him drawn by Burnet, with- 
out the necessity of making any comments upon its accuracy. 
We only premise that it is with great justice Dryden has said 
of Burnet : 

« His praise of foes is venomously nice; 
So touch'd, it turns a virtue to a vice." 

"He was a man of probity," says the bishop, "and well 
versed in the laws; but very ill-bred, vain, and haughty. He 
was long much admired for his eloquence ; but it was laboured 
and affected : and he saw it as much despised before he died. 
He had no sort of knowledge in foreign affairs : and yet he loved 
to talk of them perpetually : by which he exposed himself to 
those who understood them. He thought he was bound to 
justify the court in all debates in the House of Lords, which he 
did with the vehemence of a pleader, rather than with the 
solemnity of a senator. He was an incorrupt judge : and in his 
court he could resist the strongest applications even from the 
king himself, though he did it nowhere else. He was too elo- 
quent on the bench, in the House of Lords, and even in com- 
mon conversation, that eloquence became in him ridiculous. 
One thing deserves to be remembered of him : he took great care 
of filling the church livings that belonged to the seal with worthy 
men: and he obliged them all to residence." 

The Duke of Wharton speaks of him in a very different 
strain. W^transcribe a portion of the character he has drawn, 
which forms the sixty-ninth number of the True Briton : 

" His decrees were pronounced with the greatest solemnity 
and gravity ; no man's ever were in higher esteem, had more 
weight, or carry greater authority at this very day than his do. 
He was a great refiner, but never made use of nice distinctions 
to prejudice truth, or colour over what deserves the worst of 
names. He frequently declared, he sat there to do justice, and 
as long as his majesty was pleased to continue him on that seat, 
he would do it, by the help of God, impartially to all, to the 
officer as well as the suitor. If the officer exceeded his just 
fees, or played tricks with the client, he would fine or punish 



86 LORD NOTTINGHAM. 

him severely : at the same time, the trouble and attendance of 
the officer (he thought) justly entitled him to his fees. His 
reprimands were mixed with sweetness and severity, and so 
pointed as to correct, not confound the counsel. He was indeed 
difficult of access, but when once you had admittance, you found 
nothing from him but what was fair, just, and honourable ; so 
that he had the happiness to send most people away with plea- 
sure and satisfaction. There may have been persons on the 
bench of more extensive knowledge and greater capacities, but 
as to the duty and faithful discharge of the office, his lordship 
never had a superior, and I am afraid there will be but few 
equals. His morals were as chaste as his writings, and they 
who have pretended to criticise the one, could never jfind the 
least fault with the other. His conversation was always with 
the greatest deference to decency and good manners. He was 
ever on his guard to parry the thrusts of witty courtiers, and 
men of pleasantry. A good name he thought the most valuable 
thing in life, and that on which virtue and honour depended. 
For he that slights the one can never have any value for the 
other ; 'tis better to be unborn than ill-bred ; and out of life than 
proffigate and abandoned. To figure this great and inestimable 
man aright, and to paint him in his true colours, and with some 
warmth of imagination, but still with the greatest submission to 
strict justice : I would seat him on his throne, with a ray of 
glory about his head, his ermines without spot or blemish, his 
balance in his right hand, mercy on his left, splendour and bright- 
ness at his feet, and his tongue dispensing truth, goodness, virtue, 
and justice to mankind." 

This is no doubt, as the author himself avows, a warmly 
coloured picture ; but we have no reason to believe he errs, 
when he affirms it to be in its main features a correct one. He 
is not by any means the Chancellor's only eulogist, A very 
high but certainly not undeserved compliment is also paid to his 
merits, in that portion of the second part of Absalom and Achi- 
tophel, which was written by Tate. To say of him only that 
he had the endowments of Achitophel, that is of Shaftesbury, 
might not be thought a very exalted panegyric upon his ability 
as judge, were it not that Shaftesbury is represented by Dryden, 



LORD NOTTINGHAM. 87 

in the first part of the poem, as a very model for Chancellors.* 
Finch is designated by the name of Amri. 

« Our list of nobles next let Amri grace 
Whose merits claim'd the Abethdin's" high place ; 
Who, with a loyalty that did excel, 
Brought all the endowments of Achitophel. 
Sincere was Amri, and not only knew, 
But Isr'el's sanctions into practice drew ; 
Our laws, that did a boundless ocean seem, 
Were coasted all, and fathom'd all by him : 
No Rabbin speaks like him their mystic sense, 
So just, and with such charms of eloquence ; 
To whom the double blessing does belong. 
With Moses' inspiration, Aaron's tongue." 

Leaving these contemporary accounts and opinions to speak 
for themselves, we now resume our narrative of Finch's life, at 
the period of his being appointed lord keeper. About two 
months after his promotion to this office, he was elevated to the 
peerage, 10th January, 1674, with the title of Baron Finch of 
Daventry, in the county of Northampton, of which manor he 
had some time before become the proprietor. In his patent of 
baronetcy he had been designated as of Ravenston, or Raunston, 
in the county of Bucks. This estate, situated nearly on the 
border of Northamptonshire, about six miles north of Newport 
Pagnel, and a little to the west of Olney, had formerly belonged 
to a priory of Austin canons, founded by Henry the Third. On 
the suppression of the monasteries it had been given to Wolsey, 
but was afterwards resumed by the crown, and at length, in the 

* "Yet fame deserv'd no enemy can grudge, 

The statesman we abhor, but praise the judge: 

In Isr'el's courts ne'er sat an Abethdin 

With more discerning eyes, or hands more clean ; 

Unbrib'd, unsought, the wretched to redress, 

Swift of dispatch, and easy of access. 

Oh ! had he been content to serve the crown 

With virtues only proper to the gown, 

Or had the rankness of the soil been freed 

From cockle, that oppress'd the noble seed, 

David for him his tuneful harp had strung, 

And Heav'n had wanted one immortal song." 



88 LORD NOTTINGHAM. 

reign of Elizabeth, had passed by grant into the possession of 
Sir Moyle Finch, of Eastwell, by whom it was most probably 
settled as a younger son's portion upon Sir Heneage Finch, the 
recorder. With the recorder's son it was always a favourite 
country residence, and a hospital or almshouse, erected and 
endowed by him in the parish, still attests the interest he took 
in the welfare of the poor of his neighbourhood. He also pur- 
chased a fee farm rent of the manor, amounting to eighty-four 
pounds a year, and gave it to increase the profits of the vicarage, 
besides which act of munificence, he contributed the yearly sum 
of ten pounds towards ornamenting the church. 

In the House of Peers, his opinion seems to have carried no 
less weight with it than in the Commons. At the commence- 
ment of every session, it was usual for the king to open the 
parliament in person by a short speech ; and this he invariably 
concluded by referring for further development of the topics he 
had touched upon, to the lord keeper, whose discourses on these 
occasions are reported at considerable length in the Parliament- 
ary History. In the one he pronounced at the commencement 
of the session in 1675, it may be seen that he assumes credit 
to the government for having revived the laws against papists 
(than which it is certain they could not at that time have 
achieved a more popular measure), and for having at the same 
time shown their love of impartial justice, by pursuing a similar 
line of conduct with regard to the dissenters. He himself, 
indeed, was one of the warmest advocates of the test, a matter 
on which his zealous attachment to the Church of England makes 
it more than probable he felt almost a personal interest. Now 
such views as these it surely is not our intention to defend, much 
less to advocate. But the circumstances of the times should be 
taken into consideration, before we condemn him for entertain- 
ing them. There was then, as subsequent events proved, a real 
ground for apprehension with respect to the designs of the 
Catholic party. The alarm cry of "the church in danger," 
v/hich has since become, to borrow a metaphor from the green 
room, one of the stock properties of Tory management, was in 
those days the expression of a well-considered fear of actually 
impending peril, and not the weak foreboding of the timorous, 
who are always in dread of imaginary evils to come, nor the 



LORD NOTTINGHAM. 89 

affected terror of the designing, who seek to conjure up such 
phantoms merely that they may take advantage of the confusion 
tlieir presence is sure to create. It should be recollected, also, 
that the line of conduct pursued in this matter by the lord keeper 
was not by any means the one best calculated to further his own 
private interests with the court party. The thorough courtiers 
of that day very well knew, they could not do themselves a 
greater disservice, at least as far as their future prospects were 
concerned, than by raising or encouraging the fears of the people 
on such a theme. Even Charles himself was suspected by many 
of a leaning towards the Catholic religion, though if he had, 
either his discretion, or his love of ease, certainly induced him to 
keep it tolerably well concealed. But the Duke of York made 
no secret of his faith ; and those who were actuated by purely 
selfish motives, fully understood the policy of propitiating the 
favour of the heir apparent, as well as of the reigning sovereign. 
Finch may be thought by some an over-zealous churchman, but 
at least his zeal was heartfelt and sincere. 

On the 19th of December 1675, Lord Finch exchanged his 
title of lord keeper for that of Chancellor. Of this we find the 
following memorandum in his manuscript reports. " Sunday 
morning. The king going to chappell declared me lord chan- 
cellor, whereupon I kist his hand, and presently had the com- 
pliments of all the court, and not long after from all the ambassa- 
dors and foreign ministers." There are several such casual 
notices as this to be found in the same work, which, if we could 
aflford more space, we should make a point of extracting. Such, 
for instance, is an account of Hale's coming before a master in 
chancery (21st February, 1675), to enrol the resignation of his 
office as chief justice of the Common Pleas, in order to put it 
upon record, that he retired of his own free will, and also be- 
cause, according to an opinion then prevalent, a chief justice, 
being appointed by writ, was held not to be removable by the 
king's pleasure, like the puisne judges, who held their offices by 
patent. There is also, in the same volume, a very long and ela- 
borate account of the trial of the young Lord Cornwallis for 
murder (30th June, 1675), where Finch presided as lord high 
steward. All the details of the ceremonial to be observed on 



90 LORD NOTTINGHAM. 

the solemn occasion were discussed by him and other officers 
^vilh great minuteness, before the proceedings commenced ; and 
the resolutions decided upon are carefully set forth in this report. 
The trial itself is interesting, if for no other reason than that it 
is the only one upon record of an infant peer. He had been 
found guilty by a coroner's jury, of the murder of a boy killed 
in St. James' Park by the son of Lord Gerrard of Brandon, with 
whom he was at that time in company. The verdict of the 
peers was manslaughter, which entitled him to his immediate 
discharge. There is also a similar account of the trial of the 
Earl of Pembroke (4th April, 1677) which, happening during a 
session of parliament, took place before the whole house of peers, 
instead of a select body of lords triers, as the former had done. 
The Lord Chancellor officiated as Lord High Steward. We 
shall endeavour to find space for a short extract from his report 
of some of the particular details, as to certain matters of cere- 
mony, merely by way of giving a specimen of the manner in 
which they are described. The case itself may be seen in the 
State Trials. " Being come to the lord's house, and retired to 
putt on my robes, after prayers said, wee adjourned the house 
into Westminster Hall, and went in the order prescribed, through 
the painted chamber, court of requests, and court of wards, into 
the hall. Li which procession the Duke of York and Prince 
Rupert, to do honour to the king's lieutenant (for so they called 
me), gave me the precedence, and suffered me to come last* all 
the while, till the tryall was over and the white staff broaken. 
When we came into Westminster Hall, the court was prepared 
like the house of peers in all points (with scaffolds on each side 
for spectators, and a place for all the foreign ministers). So the 
lords spirituall and temporall did quickly find and know their 
own places. I took my seat upon the woolsack, near the cloth 
of state, but not directly under it, having first made my obeysance 
to the chaire, and then to the king and queen, who satt by al 
incognito. Then I called for the commission, which was de- 
livered to me, and received back again, and read by the clerk of 

* A curious perversion, by the way, of the original signification ot 
the word precedence. 



LORD NOTTINGHAM. 91 

the crown in B. R. in the usual forme. While the commission 
was reading, the whole house stood up uncovered," &c. &c. 

Another of these memoranda details how, on Sunday the 12th 
of January, 1678, the king, on returning from chapel, sent for 
the Chancellor to wait upon him alone in his closet at Whitehall, 
and there desired him to attest a document written with his own 
hand, the purport of which was, that he had never been married 
to the Duke of Monmouth's mother, nor to any one except 
Queen Katherine. It is much to be regretted, that there is 
nothing relating to an affair of greater importance, one in 
which the Chancellor was personally much more interested, and 
of which, on every account, it would be highly satisfactory to 
have had his own explanation. We allude to the impeachment 
of Earl Danby. The articles against this nobleman had been 
first carried up to the Lords in December 1678 ; but had been 
rendered nugatory for the time, by the prorogation of the Parlia- 
ment on the 30th of the same month, and its dissolution on the 
12th of January following: and when the new parliament, 
assembled in March 1779, announced their intention of carrying 
on the proceedings already instituted, the earl pleaded a pardon 
granted by the king. It was respecting the sealing of this pardon 
that the lord chancellor's name was brought in question. The 
seal, it appeared, had not been affixed by Lord Finch, as in the 
ordinary course it would have been, but by the king himself, or 
at least by his order and in his presence ; and the Chancellor 
attempted to justify the irregularity, by assuming it to be ' an 
immediate effect of his majesty's power of creating' (these are 
Burnet's words), and entitling the pardon ' a stampt pardon of 
creation.' Roger North calls this a trick to avoid the conse- 
quences that might have awaited him, had he consented himself 
to make use of the great seal for such a purpose as that of defeat- 
ing an impeachment ; but we think the Duke of Wharton's ac- 
count of the matter, which bears the impress of truth upon the 
face of it, completely justifies him from the charge of resorting to 
shift or subterfuge on the occasion. From this statement it ap- 
pears that the king sent for Lord Finch, and commanded him to put 
the great seal to the pardon, which was lying ready drawn up be- 
fore him. The lord chancellor remonstrated, represented to his 



92 LORD NOTTINGHAM. 

• 
majesty that it was contrary to law to pardon a subject under im- 
peachment, and finally, begged to be excused from compliance. 
Upon this the king called for the seals himself (which, it will be 
remarked, was in effect desiring the Chancellor to resign his 
office), and tlien caused the great seal to be affixed by another 
person. Immediately afterwards he handed them back to Lord 
Finch, with these words, " Take them, my lord, I know not where 
to bestow them better." Now, if there were the slightest ground 
for supposing that this was a preconcerted scheme on the part of 
Finch to escape responsibility, we should be very ready to admit 
that it would deserve to be stigmatized as a trick ; but where no 
such probability appears, it must be allowed that the term is 
wrongly applied. 

Whatever of interest had been taken by the other house of 
parliament, or by the nation, in the matter of Lord Danby's im- 
peachment, very soon yielded to the all-absorbing excitement 
produced by the far-famed Popish Plot. That most disgraceful 
of all impostures ever palmed off upon the credulity of a people, 
was got up, as is well known, by Lord Shaftesbury, and the 
Whig party. We may therefore fairly presume Lord Chancellor 
Finch to have been all along entirely ignorant of the secret 
springs that set this notable state engine in motion. But though 
free from all suspicion of being a confederate in the contrivance, 
he has to share with many other not unwise nor inconsiderate 
men, the odium, or we should rather say the ridicule, of being 
made one of its dupes. This we learn upon his own showing, 
from the speech he pronounced as lord high steward, in passing 
judgment upon the unfortunate Lord Stafford, whose death was 
one of the most impressive scenes of the dark tragedy. The 
speech Burnet considers to be one of the best he ever made ; 
" but," adds the bishop, *' he committed one great indecency in 
it : for he said, who can doubt any longer that London was burnt 
by papists ? though there was not one word in the whole trial 
relating to that matter." This censure is no doubt just so far as 
it goes ; but in our opinion this is not far enough ; for it should 
be applied also to the bigotry which must have overlaid and 
blinded his judgrpent, before he could give credence, not only to 
this fable, but, as appears from his speech, to the monstrous 



LORD NOTTINGHAM. 93 

story also, by which the murder of Sir Edmondsbury Godfrey 
was accounted for; a tale certainly every way worthy that re- 
nowned Titus Gates— 

Whose memory, miraculously great, 
Could plots exceeding man's belief repeat; 
Which therefore could not be accounted lies, 
For human wit could never sach devise. 

For the rest, the full report of the lord steward's speech on 
this occasion (7th Dec. 1680), which was originally published 
in a single folio sheet, may be seen in the State Trials. We are 
told by Evelyn, that the sentence of death by hanging, drawing, 
and quartering, was pronounced " with great solemnity and 
dreadful gravity." The doubt afterwards raised m the House of 
Commons by Lord William Russell, as to the king's power of 
dispensing with any of the truly barbarous tortures superadded 
by the law in cases of high treason to the common mode of 
capital punishment, and the petition thereupon presented to the 
lords by the sheriffs of London (one of whom was Slingsby 
Bethel, the Shimei of Dryden's Absalom and Achitophel), suffi- 
ciently show the feeling that existed against the unhappy victim 
of popular delusion and bigotry.* 

A few months after the trial of Lord Stafford, the Chancellor 
took that tide by which he has since been most generally known : 
he was created (May 12th, 1681) Earl of Nottingham. This 
elevation of rank, however, came too late for him to indulge in 
the prospect of long enjoying it. He was by that time sixty 
years of age, and besides the infirmities commonly incident to 
that period of life, his health suffered from habitual attacks of 
gout. So frequent latterly were the visitations of this malady, 
that although he never abstained, but in case of absolute neces- 
sity, from the assiduous discharge of his official duties, and very 
often used to sit hearing petitions when in extreme bodily pain, 
and as he himself used to say, fitter for his chamber than for a 

* It is a curious fact, that one of the managers on the part of the 
Commons at this trial was Serjeant Maynard, then near eighty years 
of age, who had been concerned in prosecuting the impeachment 
against Lord Strafford forty years before, and who lived long enough 
to compliment William the Third on his accession to the throne. 



9\ LORD NOTTINGHAM. 

courl of justice; yet it was found expedient to have a comnais- 
sion always kept ready in the House of Lords for the appoint- 
ment of a temporary speaker, in the event of liis not being able 
to attend. Ilis place on such occasions was taken by North, 
chief justice of the Common Pleas, who, on his resigning the 
post of attorney-general, had succeeded to it by his recommen- 
dation, and who afterwards became lord keeper. How fast his 
health was declining, and how often the state of it obliged him 
to be absent from the Court of Chancery, may be inferred from 
the falling off in point of number of the cases reported in his 
manuscripts. The month of July following his promotion in 
the peerage contains only seven, in November of the same year 
there are but five, in February, 1682, only three, and from that 
till May there is a perfect vacuum. We find, however, three so 
late as November of that year, the last of which was decided 
within a month and a few days of his death. He breathed his 
last at his house in Queen Street, Covent Garden, on the 18th 
of December, 1682, being then in the sixty-first year of his age. 
His remains are interred in the parish church of Raunston in 
Buckinghamshire, where a splendid monument was afterwards 
erected to his memory by his eldest son. 

It is not to be expected that we should have much to tell of 
Lord Nottingham's private life. His wife died about seven 
years before him. AVith her we are assured he enjoyed entire 
domestic happiness, which (unless a man have such a biographer 
as fell to the lot of his successor on the bench) is nearly the 
same thing as to say, that there was little or nothing about his 
domestic affairs likely to attract particular notice ; and lucky 
might the husband of Charles's court consider himself, of whom 
this could be said. Generally speaking, indeed, the even tenor 
of a quiet domestic life leaves no trace behind it, whereas house- 
hold misfortunes of every sort and degree have a tolerable 
chance of being observed upon. An illustration of this, in the 
case of Lord Nottingham, may be found among the important 
events recorded by Anthony Wood, in his diary. In the very 
same page of that precious work where the worthy antiquarian 
transmits to posterity a full account of the terrible effects pro- 
duced by a vomit he thought fit to administer to himself, the 
world is informed, that on the 7th of November, 1677, " about 



LORD NOTTINGHAM. 91 

one in the morning, the Lord Chancellor Finch his mace was 
stole out of his house in Queen Street. The seal laid under his 
pillow, so the thief missed it. The famous thief that did it was 
Thomas Sadler, soon after taken and hanged for it at Tyburn." 
We are happy in being able to state that, for any thing we can 
learn, his lordship's life was not on any other occasion embittered 
by the occurrence of a calamity so worthy of record as this. 
The fortune he inherited from his father was large, and he had 
increased it by his professional gains : so that he could afford to 
be generous, even to the sovereign, to whom he latterly gave up 
the stipend of four thousand a year, allowed for the tables and 
other expenses of the Chancellor. He had no scruple in re- 
ceiving it at first, he said, because it might be considered as an 
equivalent for the loss he sustained by giving up his practice at 
the bar; but having enjoyed it long enough to compensate him 
for this, he declined accepting it any more, and suggested that 
his majesty might find the sum thus returned convenient for his 
own royal occasions. Charles the Second was not a man on 
whom a hint of this kind was likely to be thrown away. 

Besides the reports and other unpublished works of Lord 
Nottingham's already mentioned, there is a treatise frequently 
referred to by him as " mon vade mecum de Prerogativa." His 
short notes to Coke on Littleton are probably familiar to all who 
are likely to read this memoir, as being contained in the edition 
of Hargrave and Butler. There are also several minor works 
that bear his name. These are speeches and discourses in the 
trial of the judges of king Charles I.; speeches to both houses 
of parliament, 7th of January, 1673, (fee. ; speech at the trial of 
Viscount Stafford ; answers by his majesty's command upon 
several addresses presented at Hampton Court ; and arguments 
in chancery in the case of Howard v. the Duke of Norfolk. 
These may be so far said to be his own performances, that they 
are all originally and intrinsically his, though probably not en- 
tirely in their present form. There is one very able pamphlet, 
however, which has been printed from his own manuscript. It 
is entitled " A Treatise on the King's power of granting pardons 
in cases of impeachment," and was written, as his son informed 
Mr. Speaker Onslow, on the occasion of the question being 
mooted in the affair of Lord Danby. This manuscript was sold 



96 LORD NOTTINGHAM. 

among the collection of Mr. Carteret Webb, and came, we be- 
lieve, into the possession of the Marquis of Lansdowne. It was 
particularly alluded to in parliament, at the time of Warren 
Hastings' impeachment ; and in a debate in the House of Lords, 
some doubts were expressed as to its authenticity, because in 
sections 61, 62, and 63, the author maintains a doctrine different 
from that which he is reported to have delivered in the case of 
Lord Stafford. Mr. Hargrave had seen the pamphlet, and to 
remove all doubts, it was published in 1791. If we except 
two speeches and one official letter of Lord Nottingham's in 
the Harleian manuscripts, and various other loose reports of 
speeches contained in different works, these are, so far as we 
know, all the productions attributed to him as directly or indi- 
rectly their author. 

Out of fourteen children. Lord Nottingham left behind him 
eight; one daughter and seven sons. Of these, the eldest, 
Daniel, succeeded to his father's title, and on the failure of issue 
in the elder branch of the Finch family, took also those of Earl 
of Winchelsea, and Viscount Maidstone, with the large posses- 
sions thereto attached. There was a younger son who fol- 
lowed the law with some reputation ; but the second, Heneage, 
also a barrister, almost rivalled his father in the brilliancy and 
success of his professional career. A natural gift of eloquence 
was held, it seems, at that time, to be an hereditary talent in the 
Finch family; for North, in his discourse on the study of the 
laws, where he is expatiating on the necessity of a lawyer's en- 
deavouring to acquire readiness of speech, after quoting the 
familiar saying of Serjeant Maynard, that the law is ars babla- 
iiva, adds that " all the learning in the world will not set a man 
up in bar practice without the faculty of a ready utterance ; and 
that is acquired by habit only, unless there be a natural felicity 
of speech, such as the family of the Finches is eminent by." 
This reputation was not only well kept up, but considerably 
added to by Heneage Finch, the second son of the chancellor. 
He was called, for his eloquence, silver tongued Finch ; and this 
qualification together, with his legal learning, so effectually "set 
him up in bar practice," that he was considered fit to hold the 
office of solicitor-general shordy after his father was appointed 
Chancellor (1678). From this post he had the honour to be 



LORD NOTTINGHAM. 97 

removed by James the Second, in 1686. In 1688 he was one 
of the principal counsel for the seven bishops. Subsequently, 
during the reign of Queen Anne, (15th of March 1702,) he was 
called to the upper house by the title of Baron Guernsey, and 
on the accession of George the First was created Earl of Ayles- 
ford (19th October, 1714); thus attaining the same rank which 
his father had acquired in the peerage, and completing the list 
of the eminent men who have made the name of Finch so 
honourably conspicuous in our legal annals of the seventeenth 
century.* 

* In one of the caustic notes written by Swift on the margin of 
Burnet's History, Lord Aylesford is designated as " an arrant rascal." 
If Swift's character stood as high for impartiality as for wit, this impu- 
tation would be a serious one ; as it is, it only proves that Aylesford 
was a staunch whig, and therefore obnoxious to a man who, like all 
renegadoes, was more violent in behalf of his new faith than those 
who had professed it all their lives. Besides the five eminent Finches 
we have enumerated above (not including Francis, the younger son of 
the Chancellor), we find a Nathaniel Finch called to the degree of 
Serjeant at law in 1640. 



SIR JOHN HOLT. 



If we were to admit the general truth of an observation often 
made, that the biography of a lawyer, however eminent, unless 
he have also won his way to political distinctions, and bequeathed 
his fame to posterity as a statesman or an orator, cannot be ex- 
pected to afford much of interest for the general reader ; it is at 
least subject to some striking exceptions, one of which presents 
itself in the instance of the illustrious judge of whom we are 
about — it may be said for the first time — to collect the scattered 
notices. Although disconnected by his station and duties, dur- 
ing the greater part of his mature life, from any direct interference 
in the conflict of politics, and undistinguished by any brilliancy 
of oratorical talent, the Lord Chief Justice Holt filled his high 
office so long and so worthily, and in times when the bold and 
honest administration of justice, aboA^e all of criminal justice, 
was so intimately essential to the welfare of his country, and so 
contrary, unhappily, to the melancholy experience of many 
years ; — he presided on so many occasions most interesting to 
every student of our constitution ; — finally, his personal charac- 
ter and history presented so many points, not only to excite the 
admiration and respect, but also to minister to the curiosity and 
even amusement of the reader, — that the narrative of his life can 
hardly be altogether unattractive to any, who look back with 
gratitude on the period when their country's liberties, so long 
the spoil of pensioned kings and servile judges, first found the 
security, not only of just and equal laws, but of an incorrupt 
and fearless application of them. To legal readers, at all events, 
it may furnish matter of interesting contemplation to trace the 
pure and honourable career of one of the most learned and vir- 
tuous of their profession, even, as we hope, in so brief and im- 
perfect a record as we are able to present of it. 



SIR JOHN HOLT. 99 

John Holt was born at the little market-town of Thame, in 
Oxfordshire, on the 30th of December, 1642. He was the 
eldest son of Sir Thomas Holt, knight, a bencher of Gray's 
Inn, and a gentleman of some property in Oxfordshire, who 
was called serjeant in the year 1677, rather, as it would seem, 
in virtue of his son's reputation and practice, which had then 
become very extensive, than of his own, of which few traces are 
to be discovered. Sir Thomas was a fast adherent of the court- 
party of Charles H., and one of the abhorrers of petitioning 
for the sitting of parliament, who fell under the displeasure of 
the Commons in the unruly session of 1680. The son, after 
spending seven or eight years, unprofitably enough, at the free 
school of Abingdon (his father being at the same time recorder 
of that borough), was transferred, in his sixteenth year, as a 
gentleman commoner to Oriel College, Oxford, where he was 
placed, as Anthony Wood informs us, under the tuition of a 
Mr. Francis Barry. Of the tutor's qualifications we have no 
account; but the pupil, who had brought with him from school 
the reputation of a determined idler, and a reckless perpetrator 
of mischief, was by no means estranged from his disposition to 
forbidden gratifications, by the greater opportunities of indulg- 
ence afforded by a university life ; and he is reported, accord- 
ingly, to have signalized himself by an abandonment to all kinds 
of license, and continual infractions of discipline. To such a 
length, indeed, did some of his escapades proceed, and so little 
consideration did he exercise in the choice of his associates, that 
tradition even reports him as having recognized, many years 
afterwards, one of his old companions in a prisoner convicted 
before him of felony; and, on visiting the culprit in gaol, and 
inquiring the fate of certain of their college intimates, having 
received for answer, — " Ah, my lord, they are all hanged but 
myself and your lordship !" 

Anotlier story of his juvenile extravagances, which perhaps 
has been too long current to be set down as altogether apocry- 
phal, is supplied with a more extraordinary sequel in his judi- 
cial history. Having prolonged one of his unlicensed rambles 
round the country, in company with some associates as reckless 
as himself, until their purses were all utterly exhausted, it was 
determined, after divers consultations how to proceed, that they 



100 SIR JOHN HOLT. 

should part company, and try to make their way singly, each by 
the exercise of his individual wits. Holt, pursuing liis separate 
route, came to the little inn of a straggling village, and, putting 
the best face upon the matter, commended his liorse to the 
attentions of the ostler, and boldly bespoke the best supper and 
bed the house afforded. Strolling into the kitchen, he observed 
there the daughter of the landlady, a girl of about thirteen years 
of age, shivering with a fit of the ague ; and on inquiring of her 
how long she had been ill, he was told, nearly a year, and this 
in spite of all the assistance that could be had for her from phy- 
sicians, at an expense by which the poor widow declared she 
had been half ruined. Shaking his head with much gravity at 
the mention of the doctors, he bade her to be under no further 
concern, for she might assure herself her daughter should never 
have another fit : then scrawling a few Greek characters upon 
a scrap of parchment, and rolling it carefully up, he directed 
that it should be bound upon the girl's wrist, and remain there 
till she was well. By good luck, or possibly from the effect of 
imagination, the ague returned no more, at least during a week 
for which Holt remained their guest. At the end of that time, 
haying demanded his bill with as much confidence as if his 
pockets were lined with jacobuses, the delighted hostess, instead 
of asking for payment, bewailed her inability to pay him as she 
ought for the wonderful cure he had achieved, and her ill-fortune 
in not having lighted on him ten months sooner, which would 
have saved her an outlay of some forty pounds. Her guest 
condescended, after much entreaty, to set off against his week's 
entertainment the valuable service he had rendered, and wended 
merrily on his way. The sequel of the story goes on to relate, 
that when presiding, some forty years afterwards, at the assizes 
of the same county, a wretched decrepid old woman was indicted 
before him for witchcraft, and charged with being in possession 
of a spell which gave her power to spread diseases among the 
cattle, or cure those that were diseased. The Chief Justice 
desired that this formidable implement of sorcery might be 
handed up to him ; and there, enveloped in many folds of dirty 
linen, he found the identical piece of parchment with which he 
had himself played the wizard so many years before. The 
mystery was forthwith expounded to the jury: it agreed with 



STR JOHN HOLT. 101 

the story previously told by the prisoner ; the poor creature was 
instantly acquitted, her guest's long-standing debt amply dis- 
charged, — and, it is added, this incident came so opportunely to 
the discomfiture of ignorance and bigotry, as to put a final end 
to prosecutions for witchcraft in that part of the country. 

Such being the character of the young gownsman's associa- 
tions and pursuits, it soon became evident that the fetters of 
university discipline were far too weak to retain him within due 
restraint, and that the only chance of efi'ecting this was by bring- 
ing him within the immediate sphere of parental admonition and 
control. At least we may reasonably attribute it to this cause, 
that before he had completed his first year of residence, he was 
finally removed from the university, and became a resident stu- 
dent of Gray's Inn, on the books of which society he had been 
entered before he was ten years old (19th Nov. 1652). Here his 
studies were necessarily to be prosecuted under the daily tutelage 
and supervision of his father ; amJ whether the paternal admoni- 
tions, or the absence of temptation and dissolute acquaintance, 
wrought the change, it is certain that the irregular habits he had 
indulged in at college did not long cleave to him, and that he 
became, even while yet very young, as much distinguished for in- 
dustry and application, as he had been for a thoughtless waste of 
time and talents. We may observe, however, that he scarcely 
appears ever to have adequately supplied the deficiency of classi- 
cal and scholastic knowledge, occasioned by the mis-spent years 
and neglected opportunities of boyhood. 

On the 27th of February, 1663, he was called to the bar. 
Entering, as he did, the profession without any of the recom- 
mendations derived either from influential connexions, or from 
a high university reputation — which at that day carried with it 
much greater weight than at present, — he seems to have passed 
even more than the usual period of probationary expectation, 
before his assiduity began to be repaid by any share in the sub- 
stantial rewards of professional labour. It is not, indeed, until 
about the year 1676 that his name occurs at all frequently in the 
reports. After that period he grew almost at once into exten- 
sive and profitable employment. A glance into any of the re- 
ports which give the names of counsel, (as Shower, Raymond, 
or Skinner), or through the State Trials, during the last ten years 



102 SIR JOHN HOLT. 

that preceded the Revolution, will show at once the great extent 
and first-rate character of his practice. Scarcely an argument 
of any importance occurs in the King's Bench or Exchequer, 
which is not illustrated by his learning and research ; — scarcely 
a cause of any weight between the crown and the subject, in 
which his zeal and talent are not called into exercise on behalf 
of the accused. Attached from his youth, although without in- 
temperance or bigotry, to the principles and party which sought 
to secure the maintenance of Protestantism and civil freedom 
against the treacherous encroachments of an unprincipled court, 
— for his father's precepts and example, if they reclaimed him 
to sobriety of conduct, had not succeeded in making him a con- 
vert to the excellences of prerogative, — he was not likely to be 
selected by the court as one of its instruments, in the prosecu- 
tion either of its own victims, or of those which it basely yielded 
up to the hoodwinked rage of popular delusion. In 1680, we 
find him assigned by the House of Lords as counsel for three 
of the five Popish peers impeached of treason (Lords Arundell, 
Bellasyse, and Powis) ; on whose behalf, however, his services 
were not ultimately required, Lord Stafford alone being brought 
to trial. Pe had been also, in conjunction with Saunders and 
Raymond, named counsel for Lord Danby on his abortive im- 
peachment in the preceding year. Our readers need not be 
informed, that at the period of which we speak the law denied 
to prisoners accused even of treason the open advocacy of coun- 
sel on their trials, except upon such matters of law as the court 
considered disputable, when it assigned them counsel to argue 
on their behalf. Hence doubtless it is that Holt is not recorded 
as appearing for any of the less illustrious victims of the Popish 
Plot, by many of whom it is probable he was privately retained 
and consulted. When that notable engine of faction began to 
fall into comparative disrepute, and the chief justice Scroggs, 
turning with the tide of opinion at Whitehall, and venturing at 
length to scatter a little soil upon the hitherto sacred characters 
of those " arch-attestors for the public good," Oates, Bedloe, and 
the rest, came to be reflected on as a secret abettor of popery 
and massacre, we find Holt employed as junior counsel to Jef- 
feries, then Recorder, in support of a criminal information against 
the libellers; the only occasion, we believe, on which he ap- 



SIR JOHN HOLT. 103 

peared for the crown in any state prosecution. About the same 
time, he was assigned counsel in defence of a party indicted for 
a conspiracy to scandalize the testimony of the same " famous 
cloud of witnesses." In almost all the other prosecutions that 
arose out of the contest of parties in the latter years of Charles 
II.'s reign, and that are recorded in the State Trials, he is to be 
found engaged in opposition to the court interest. In 1683, he 
was assigned, with Pollexfen and AVard (afterwards his col- 
leagues on the bench as Chief Justice of the Common Pleas and 
Chief Baron of the Exchequer), as counsel for Lord Rus- 
sell, to argue his legal objection to the sufficiency of a juror for 
want of the requisite freehold qualification. Their argument 
embraced two positions ; first, that this was a qualification ne- 
cessary at common law ; or, secondly, that it was at all events 
required by the statute of 2 Hen. V. c. 3 : the former, although 
it was then overruled by the unanimous opinion of the Court 
(consisting of at least eight judges, and some of them certainly 
among the least corrupt of that disgraceful period), had been 
admitted only two years before, on the trial of Fitzharris, the 
same judge (C. J. Pemberton) presiding as on the present occa- 
sion ; — to the latter it was answered, that the statute of Henry V. 
was repealed by the 1 &: 2 Philip and Mary, which directed 
trials for treason to be according to the course of the common 
law ; an opinion which all the highest authorities on criminal 
law since the Revolution have concurred in pronouncing, as it 
was afterwards declared by the legislature, unquestionably erro- 
neous. 

Of the important cases involving private rights, or at least less 
directly connected with political disputes, in which Holt was 
employed as counsel, we may mention the " Great Case of 
Monopolies," as it was termed (East India Company v. Sandys) ; 
the question discussed in it being, the right of a private trader 
to carry on commercial intercourse with the East Indies, not- 
withstanding the exclusive privilege of trading granted by the 
letters patent of Charles II. to the company. One of his argu- 
ments in support of the monopoly was a singular one enough — 
that the king's subjects had no legal right to hold intercourse of 
any kind with infidels, without express license from the crown : 
for which he adduced the expression of Lord Coke in Calvin's 



104 SIR JOHN HOLT. 

Case, that "infidels were perpetual enemies," and cited scrip- 
tural authority into the bargain : — " We read how the children 
of Israel were perverted from their religion by converse with the 
nations around about them, in the Book of Judges." How the 
king's grant was of force enough tp save his subjects from the 
perils of idolatry, the argument did not proceed to explain. "I 
confess," said Sir George Treby, who argued for the defendant, 
" I did a little wonder to hear merchandizing in the East Indies 
objected against as an unlawful trade, and did not expect so 
much divinity in the argument. I must take leave to say, that 
this notion of Christians not to have commerce with infidels is a 
conceit absurd, monkish, fantastical, and fanatical." Mr. Holt, 
however, well knew before what tribunal he was arguing; this 
absurd and fanatical conceit was seriously taken up and strongly 
pressed by JefFeries, who had become Chief Justice before the 
cause was finally determined (for, according to the fashion of 
that day, it was argued three times, by three different sets of 
counsel). We cannot resist the temptation of transcribing from 
the judgment one or two rich samples of Jefferies's commen- 
taries on government, and notions of commercial policy. One 
of the defendant's counsel had ventured on a very tender ground 
of argument in those days — the danger of entrusting the crown 
with a prerogative of granting exclusive commercial privileges, 
which might be exercised to such an extent as to annihilate the 
foreign commerce of the country altogether. It needed no more 
to blow his lordship's loyal zeal into a flame. "The very 
objection," says he, "seems to carry an unsavoury as well as 
unreasonable mistrust in a subject of his prince ; for, as it is a 
maxim in our law that the king cannot be presumed to do wrong, 
so I am sure the constant practice of our present king has not 
given us the least umbrage for such diffidence ; [this, be it 
remembered, was in the very same year with the paternal 
monarch's quo warrantos ;] and I think I may truly say, we 
are as safe by our prince's own natural inclination as we can be 

by any law in this particular And as it is against his 

inclination, so certainly it is against his interest, to make such 
grants as the defendant's counsel seem to fear : for it is more for 
the king's benefit than it can be for his subjects', the greater the 
importation of foreign commodities is, for from thence arise his 



SIR JOHN HOLT. 105 

customs and impositions, those necessary supports of the crown ; 
and therefore, in some sense, the king is the only person 
concerned in this question ; for this island supported its inha- 
bitants in many ages without any foreign trade at all, having 
in it all things necessary for the life of man. Terra sins con- 
tenta bonis, non indiga mercis, says the poet; and truly I 
think, if at this day most of the East India commodities were 
absolutely prohibited, though it might be injurious as to the profit 
of some few traders, it would not be so to the general of the 
inhabitants of this realm." It had been said also for the defend- 
ant, that the magnitude and difficulty of the question might ren- 
der it expedient to refer it to a parliamentary decision. This 
was an insinuation, Jefferies declared, not to be passed by with- 
out observation. " God be praised," he exclaims, " it is in the 
king's power to call and di^olve parliaments when and how he 
pleases ; and he is the only judge of those ardua regni that he 
shall think fit to consult the parliament about. And Mr. Wil- 
liams would do well to save himself the trouble of advising the 
king of what things are fit for him to consult with his parliament 
about, until such time as he be thereunto called. But it hath 
been too much practised at this and other bars in Westminster 
Hall of late years, to captivate the lay-gens by lessening the 
power of the king, and advancing, I had almost said, the prero- 
gative of the people." — It need scarcely be added that the judg- 
ment of the Court was unequivocally pronounced in favour of 
the company. 

Another case in which Holt was counsel about the same time, 
and to which we may refer as involving a question of much 
general interest, was that of tlie Earl of Macclesfield v. Starkey ; 
an action for scandalum magnatum against one of the grand 
jury of Cheshire, who, in 2i presentment at the assizes, — one of 
the numerous efl'usions of loyal servility which marked that 
peliod, — had reflected upon the Earl and other gentlemen of the 
county, who had signed a Whig address to their newly-elected 
members, as promoters of schism, disafiection, and sedition. 
The case for the defendant was rested, in Holt's elaborate argu- 
ment, upon the grounds, that this was a proceeding in a course 
of justice, before a compe.tent judicature, by persons having a 
constitutional right to entertain it ; and that the causes and mat- 

8 



106 SIR JOHN HOLT. 

ters alleged in the presentment were such as would have justified 
the grand jury in requiring that the parties charged by it should 
find security for the peace. Among the documents relating to 
the case printed in the State Trials, there is a sort of running com- 
mentary on his argument, apparently the production of the noble 
plaintiff himself; depreciatory enough throughout, and closing 
with this complimentary piece of general criticism ; — " Mr. Holt 
useth a multitude of words, but comes not to the merits of the 
cause, but touches it as an ass mumbles thistles." The Court, 
fortunately, was not so hard to satisfy, and gave judgment with- 
out difficulty in favour of his client. 

It was not until some time after the accession of James II. 
that Holt, pre-eminent as his legal reputation had long been, 
received any promotion at the hands of the government, to which 
his political opinions and independent spirit were doubtless 
equally unacceptable. In February, 1685-6, on the promotion 
of Sir Thomas Jenner, the Recorder of London, to the bench of 
the Exchequer, the vacant office, which by the recent judgment 
in quo ivarranto had fallen to the disposal of the crown, was 
conferred upon him, and with it the honour of knighthood. 
Having held the opinion that this judgment was valid in law, so 
far at least as to vest in the crown the franchises of the corpora- 
tion, although not to extinguish the corporate capacity, he did 
not scruple to accept the appointment. Not long afterwards 
(April 23, 1686), he was called, with nine other members of the 
bar, to the degree of the coif. The motto inscribed upon their 
rings, — Deus, Rex, Lex, — is noticed by Bishop Kennett as 
being honourably distinguished from the badge of servility 
adopted on the last previous occasion of the same kind, when the 
learned Serjeants, with their motto o^ A Deo Bex, d Bege Lex, 
had in so many words set up the king as supreme and sole dis- 
penser of and with the laws. At the same time, " to give the 
reputation of law to the court," says the bishop, Sir John Holt 
was appointed one of the king's Serjeants. His office of Re- 
corder, however, he retained but for a very short period. Towards 
the close of the same year, the infatuated monarch began his 
practices for possessing himself of the dispensing power ; and if 
he found it necessary for his purpose to clear the bench of justice 
of many whom he had hitherto found ready and pliant instru- 



SIR JOHN HOLT. 107 

raents of despotism, it was little likely that he should expect to 
succeed with a spirit so independent and uncompromising as 
that of Holt. He was at once, therefore, displaced from the 
recordership, which was given to a certain Serjeant Tate ; a more 
manageable official no doubt, though considerably less known 
to fame. Roger Coke, however, in his *' Detection of the Court 
and State of King James H.," attributes Holt's removal to the 
same cause for which the judges Herbert and Wythens were 
hurried from their seats in the King's Bench, — the refusal to 
construe the statute of Edward HI. against desertion, to extend 
to the standing army which James had illegally raised in time 
of peace, and in which he was speedily doomed to find that he 
had called into existence the chief instrument of his own over- 
throw. It has been said erroneously that Holt was "put out of 
all his employments;" that he retained his promotion of King's 
Serjeant is certain from the fact, that he is named as being pre- 
sent in that character at the investigation which took place before 
the Privy Council, in June, 1688, into the circumstances of the 
birth of the infant heir apparent, as to whose legitimacy such 
strange suspicions were afloat. The second Lord Clarendon, 
too, who was engaged at the same period in a protracted suit 
with the Queen Dowager, Catherine of Braganza, and complains 
pitifully of the extortions of his counsel, and the practices at 
court to defeat his claim, tells us in his Diary that he applied to 
Sir John Holt, amongst others, to hold a brief on his behalf, 
which he was prevented from doing by a prohibition from the 
crown, — pledging himself at the same time not to accept a brief 
on the other side ; a piece of honourable dealing which his lord- 
ship rather ungratefully repays, by declaring, under nearly the 
same date, that the only honest lawyers he had met with were 
Roger North and Sir Charles Porter; both, like himself, 
thoroughpaced Tories, and one of whom at least, if candour and 
veracity make any part of honesty, had but an indifferent claim 
to the distinction. It is most probable that Holt was precluded 
by a similar prohibition from appearing on behalf of the seven 
bishops, who would otherwise scarcely have omitted to secure 
the assistance of an advocate, in whom, with pre-eminent legal 
talents, they knew to be united a zealous attachment to the 
cause for which they were in jeopardy, and a constitutional 



108 SIR JOHN HOLT. 

intrepidity which would assure them of the fearless and efficient 
discharge of his professional duty. It will be observed, on 
reference to the report of the case in the State Trials, that of the 
seven counsel who appeared for the bishops, tliere was not one 
who held professional rank under the crown ; nor, on the other 
hand, is Sir John Holt to be found among the counsel in sup- 
port of the prosecution. 

But the period had arrived when a great change was to pass 
upon all the institutions of the land. Within six months from 
the remarkable event we have just adverted to, the Revolution 
was virtually consummated. On the first assembling of the 
Peers, in December 1688, and again on the meeting of the Con- 
vention in January, Serjeant Holt was one of the eminent lawyers 
selected as legal assessors to the Lords, in the room of the judges, 
whose official functions had ended with the flight of their mis- 
guided sovereign, and whose character and opinions commanded 
litde respect or authority in themselves. In a very few weeks 
afterwards, he was elected into the lower House for Beeralston, 
in the place of the veteran Serjeant Maynard, who had been re- 
turned also, and made his election to sit, for Plymouth. He 
was immediately added to the committee appointed to manage 
the conferences with the Lords, respecting the vacancy of the 
throne and the declaration of rights ; and his argument on the 
nature and consequences oi^ nn abdication by the sovereign — that 
knotty question of words which seemed about to involve the 
settlement of affairs in a protracted dispute at the very outset, — 
is extant in a report more full and correct than is to be found of 
almost any other parliamentary proceedings of that lime. After 
justifying the use of the word " abdicated," as one of known and 
determinate signification in the language, although it might not 
have acquired any definite place in legal terminology, he passed 
to the broader principle for which the Commons contended : that 
the withdrawal of the sovereign, leaving the administration of 
government provided for, amounted to an express and absolute 
renunciation of the sovereignty ; was an act, therefore, o( abdica- 
tion, not merely of desertion. " The government and magistra- 
cy," he said, " is under a trust, and any acting contrary to that 
trust is a renouncing of the trust, though it be not a renouncing 
by formal deed ; for it is a plain declaration by act and deed. 



SIR JOHN HOLT. 109 

though not in writing, that he who hath the trust, acting contrary, 
is a disclaimer of the trust ; for how can a man, in reason or 
sense, express a greater renunciation of a trust than by the con- 
stant declaration of his actions to be quite contrary to that trust? 
This, my lords, is so plain, both in understanding and practice, 
that I need do no more but repeat it again, and leave it with your 
lordships, That the doing an act inconsistent with the being and 
end of a thing, or that shall not answer the end of that thing, but 
quite the contrary, that shall be construed an abdication and for- 
mal renunciation of that thing." Whether these are propositions 
which can, consistently with any monarchical system, be main- 
tained totidem verbis as they are here enounced, may possibly 
admit some question ; perhaps the more correct view of the case 
is that in which the arguments of the Whigs are summed up by 
Burnet, — that a man was rightly said to abdicate, who did any- 
thing upon which his leaving his office ought to follow. But 
these are critical disquisitions rather beside our present pur- 
pose. 

The only other occasion on which the Parliamentary Reports 
make any mention of Sir John Holt, during the brief period that 
he continued a member of the House of Commons, is in the 
course of the often agitated debates on the continuance of the 
royal revenue ; but the notes preserved of his speeches are so 
meagre as to be hardly intelligible. The throne had now been 
filled for some weeks, but the administration of justice was not 
yet provided for. The delay arose from the laudable desire of 
filling the judicial offices as well and worthily as possible. Every 
privy councillor was directed to bring a list of twelve whom he 
considered best fitted by learning and integrity to supply the 
vacant seats, and from a comparison of these lists the twelve 
judges were nominated. " Tiie first of these," says Burnet, 
'* was Sir John Holt, made Lord Chief Justice of England, then 
a young man for so high a post [he was in his forty-seventh 
year] ; who maintained it all his time with a great reputation for 
capacity, integrity, courage, and great dispatch ; so that, since 
the Lord Chief Justice Hale's time, that bench has not been so 
well filled as it was by him." The colleagues given him in the 
King's Bench were Sir William Dolben, who had been removed 
from the same seat in 1683 ; Sir William Gregory, whom his 



110 SIR JOHN HOLT. 

conscientious opposition to the dispensing power had expelled 
from the bench of the Exchequer; and Sir Giles Eyre, whose 
brother and nephew also afterwards attained judicial rank. He 
was sworn into office on the 19th of April, and took his seat on 
the first day of Easter term. May 4th, 1G89. In the August 
following, he was admitted to a seat in the Privy Council. 

To consider the Lord Chief Justice Holt, in the first place, in 
that character wherein his merits were most beneficially conspi- 
cuous, and the contrast he exhibited to the misdeeds of his pre- 
decessors most striking — as the supreme dispenser of criminal 
justice, — it is not too much to affirm, that to his appointment, 
more than to any other single circumstance that can be named, 
even amid the general amelioration in government, and in the 
national institutions and feelings, introduced by the Revolution, 
is to be attributed the essential improvement, not only in the 
practice of our criminal jurisprudence, but in the spirit and tem- 
per with which it was administered, and which from that period 
has continued more and more to distinguish and adorn the judicial 
bench of England. He brought to the exercise of his high func- 
tions, not only learning, integrity, and a masculine and discrimi- 
nating understanding, from which fallacies and sophistry glanced 
off like the arrow from the polished cuirass, but with them" an 
immoveable courage, and a compassionate patience towards the 
accused — not merely in ordinary cases, but in those also in which 
the government was most deeply interested to convict, — which, 
while it never compromised the dignity of justice, presented a 
noble contrast to the intemperance, brutality, and even vulgar 
ribaldry, that disgraced the criminal trials of the preceding reigns. 
Nor was the nation more fortunate in the virtues of this admi- 
rable magistrate, than in the long duration of his services and 
example. During the period of twenty-eight years from the 
Restoration to the Revolution, no fewer than eleven chief justices 
(and puisne judges almost innumerable) sat in the Court of 
King's Bench, — as many as have filled the same seat from the 
Revolution to the appointment of its present occupant: as well 
promoted as removed, in most instances, for reasons equally 
disgraceful to the government and to themselves. Sir John Holt 
retained his office for twenty-one years ; a period long enough 
so to familiarize the nation with the exercise of justice in mercy, 



SIR JOHN HOLT. Ill 

that succeeding judges dared hardly depart from that pure stand- 
ard had they wished. Irregularities and defects continued, no 
doubt, to disfigure for some time the proceedings of our criminal 
courts: the practice of interrogating prisoners on their trials was 
not altogether disused, although employed rather for the purpose 
of reminding them of the main points to which their defence 
should be addressed, than of convicting them by their own ad- 
missions or equivocations — the common resort of S.croggs or 
JefTeries in a doubtful case ; too much weight was still conceded 
to the unconfirmed testimony of accomplices ;* hearsay evidence 
was still mixed liberally with legal proof, and left to be disen- 
gaged from it by the summing up of the judge ; the evidence for 
the crown was sometimes interposed and resumed in the midst 
of and after the prisoner's defence, with a want of regularity very 
prejudicial to the fair distribution of justice. Other disadvantages 
to which the law itself, for a considerable period, still subjected 
the accused, — depriving him of the open assistance of counsel or 
attorney, denying to his witnesses the equal title to credit derived 
from the obligation of an oath, and compelling him to gather the 
terms of the indictment, and the legal objections that might be 
made to it, by the imperfect hearing of it on his trial,! — these it 
did not belong directly to the authority of the judge, however 
impartial or humane, to obviate. But, on the other hand, we may 
notice, in the state trials immediately subsequent to the Revolu- 
tion, some relaxations of practice in favour of the prisoners, even 
greater than perhaps might be deemed warrantable at the present 
day. Thus, on the trial of Sir John Friend for the assassination 
treason of 1696, a witness called by him was allowed to depose 



* Thus, on the trial of Charnock, in 1696, Holt directs the jury that 
"accomplices are the 7nost proper witnesses, for otherwise it is hardly 
possible, if not altogether impossible, to have a full proof of such secret 
contrivances. If they come in and repent, and give testimonies thereof 
by discovering the truth, (thus assuming the whole question of their cre- 
dibilily,)»great credit ought to be given to them." In that case, how- 
ever, the approvers were confirmed in many points. 

f The 7 W. 3, c. 3, first allowed the prisoner the benefit of a defence 
by counsel and a copy of the indictment before trial, in cases of treason ; 
the 1 Anne, st. 2, c. 9, first provided that witnesses for the prisoner in 
treason or felony generally should be sworn. See 4 Bla. Com. 359. 



112 SIR JOHN HOLT. 

to a declaration of one of the crown witnesses that he was about 
to swear against his conscience, alihougli tiie latter had not been 
at all examined to this point ; and persons were admitted to 
speak to several of the witnesses against the prisoner, as being 
reputed papists. Lord* Holt repeatedly stated and acted upon 
the principle, now universally applied, but which had then been 
lamentably forgotten, that ambiguous acts or expressions should 
always receive the construction most favourable to the accused. 
But the vast improvement in the conduct of state prosecutions 
under his auspices, will be best shown by contrasting one of the 
latest trials for treason in the reign of James II. (and that not 
before the blood-thirsty and ferocious Jefieries) with the first 
tried after the Revolution (the first, at least, which is reported at 
length), that of Ldrd Preston and his co-conspirators in 1690. 

GoodenoLigh, the seditious under-sheriflf of London m 1680, 
who had been deeply engaged in the Rye-house conspiracy, and 
also in Monmouth's rebellion, being taken prisoner after the 
battle of Sedgemoor, purchased his own worthless life by an 
accusation of Alderman Cornish, whose politics and person he 
knew to be very obnoxious to the Court, as having been a party 
to the former treason. The notorious Colonel Rumsey, who had 
made no mention whatever of Cornish in his former disclosures, 
an omission which he had now the effrontery to attribute to 
compassion, joined him in the accusation. The prisoner was 
brought to trial before Sir Thomas Jones, Chief Justice of the 
Common Pleas, and other Judges, amongst whom Wythens and 
Levinz made themselves most conspicuous, on Monday, the 19th 
of October, 1685. When called upon to plead by the Recorder, 
Sir Thomas Jenner, (the Judges not having yet come in,) he 
pressed for a postponemen^ of his trial, on the ground that he 
had no notice of it until noon on the preceding Saturday, and no 
opportunity of consulting with counsel. " Nor ought," says 
Jenner, " without leave of the Court, or by his Majesty's special 
appointment." "My lord," urges the prisoner, " ought not I to 

* By this abbreviation of their title the chief justices were always 
distinguished before the last century. As applied to Holt, Hale, or Coke, 
■we are still better accustomed to it than to their correct designations; 
but it sounds comical enough in "Lord Jones," "Lord Wright," or 
»• Lord Scroggs."^ 



SIR JOHN HOLT. 113 

have a copy of the panel ? It is a thing never denied."* " It 
hath been denied very often," was all the answer vouchsafed by 
the Recorder. After some further parley, the prisoner was pre- 
vailed upon to plead ; and the Judges being come in, he renewed 
his application for a postponement of the trial. " I do not come," 
he said, " to harangue and talk ; my case was such th^t I had 
neither pen, ink, nor paper." He was told that he had no right to 
these either, without special order ; and the application was again 
adjourned till the crown counsel should arrive, the Chief Justice 
saying, " You shall be heard in your proper time ; it is a strange 
thing'you will not be satisfied ; you shall be heard, I tell you, in 
your proper time." After the trials of Mrs. Gaunt and others 
were over, he was set to the bar again, and repeated his request ; 
but the Attorney-General "having no directions," the Court 
professed themsevles unable to grant it without the consent of 
the crown. t The trial accordingly proceeds ; he is now, when 
it could be of no use to him, allowed a copy of the jury panel : 
and the case for the prosecution having been opened by the 
Attorney-General as to be proved by the testimony of Rumsey 
and Goodenough, Cornish desires the two witnesses may be 
kept apart. " They will prove it upon you at two times," 
answers the Attorney-General. " You will find me guilty of 
neither," replies the prisoner; " I am as innocent as any person 
in this Court." The Attorney-General retorts upon him, " So 
was my Lord Russell to his death, Mr. Cornish ; do you re- 
member that?" Rumsey having given his evidence, swearing 
Cornish to have been present at a treasonable consult at Shep- 
pard's house, when the seditious paper was read which was 
proved by him also against Lord Russell and Sidney, — and 
having varied most materially from his testimony on both those 
occasions, ± — Cornish exclaimed, with some vehemence appa- 

* It had indeed been denied to CoUedge, a few years before, but it 
was granted to Lord Russell, and most other state prisoners ; after 
the Revolution it was invariably allowed. 

f 'J'here can be no doubt the Court had a discretion to postpone the 
trial on the ground of the prisoner's not having had reasonable notice. 

+ On Lord Russell's trial, Rumsey had stated that the seditious de- 
claration supposed to be produced and read at Sheppard's, was so in- 
distinctly heard by him that he could tell little of its tenor, and could 



114 SIR JOHN HOLT. 

rently, " I do declare I never was at Mr. Sheppard's at any consult 
in my life ; but I have had great dealings with Mr. Sheppard." 
" Pray, sir," says the Chief Justice, " be not transported with 
passion ; I doubt, before this time, notwithstanding the con- 
fidence you seem to have, there are few believe you to be as 
innocent as any person present." — " You will hear more from 
his oracle," says the Attorney-General ; — meaning Goodenough, 
who had been Cornish's under-sheriff. Goodenough was then 
produced, and his pardon put in : and the prisoner observing, 
"I need not say anything against him; he is known well 
enough," — was answered by Justice AVythens, "He was your 
under-sheriff, Mr. Cornish." The evidence of Goodenough, 
(the only witness produced besides Rumsey,) went merely to 
prove a supposed conversation of his with Cornish, as to a 
design of seizing the Tower, entirely unconnected with the Rye- 
house conspiracy, and with the treason charged in the indict- 
ment, to which therefore there was in fact one witness only. 
This objection, how^ever, the prisoner, having been deprived of 
the opportunity of obtaining legal advice, was unable to avail 
himself of, and confined his defence to commenting upon the 
infamous character and motives of the witnesses, and the gross 
improbability of their story. The Lord Chief Justice interrupted 
him to remind him that the only way to invalidate their testi- 
mony was to contradict them by witnesses — knowing that to be 
next to impossible. "The improbability is so manifest," urges 
the prisoner. The Chief Justice angrily rejoins, " Is it enough to 
say improbability, improbability, improbability — is that enough? 
Have you said any more ?" Cornish thereupon proceeded to call 
several persons to depose to the animosity that had subsisted be- 
tween him and Goodenough, and the reluctance with which he 

not remember any particular passages. On Sidney's trial, he gave a 
list of all the persons whom he alleged to have been present when it 
was read, of whom Cornish was not one. On the present occasion, 
after a lapse of two years, he not only swore that Cornish was present, 
and assented to the design, but could recollect parts of the paper with 
precise accuracy. Cornish had offered to put in the printed report of 
Lord Russell's trial, to show these inconsistencies ; it was indeed pro- 
perly rejected, but several of the judges had been present on the former 
trial, and must have well known what Rumsey then swore; but they 
breathed no word to his discredit. 



SIR JOHN HOLT. 115 

admitted the latter into office as his under-sheriff. These having 
been heard with great impatience, and repeatedly pronouced " im- 
pertinent," he then called witnesses to prove "the manner of his 
life and conversation." *' Your life hath not been in the dark," 
observes the Chief Justice. " My lord," quietly replies the pri- 
soner, "I will call several persons to attest my constancy at my 
parish church, and receiving the Sacrament according to the rites 
of the Church of England ; that I am, to all appearance, a person 
that does as well affect the government as any man." Another 
sneer is the answer — " I doubt you are all appearance." He 
proceeds to call his witnesses ; two or three having been exam- 
ined, among whom was the celebrated Calamy (who deposed to 
Cornish's having been a regular communicant at the Sacrament 
for two years), the Chief Justice interrupts the examination to 
say, " Mr. Cornish, it is not impossible for you to produce men 
enough that shall say they know nothing against you concerning 
the government, and that you have been a loyal man; sure those 
you choose will say so, you have chosen them; and perhaps, if it 
were the business of the King's counsel they could do contrary; 
you are not accused touching your general conversation, but 
concerning a particular fact. I marvel," he presently adds, 
" you, who have been alderman yourself a great while, do not 
call some of the aldermen ; I wonder you don't call some of 
your brethren that are known persons." And to the testimony 
of the prisoner's receiving the Sacrament, the answer is imme- 
diately given, " To be sure ; to get into your office you could 
lay aside your scruples, and receive the Sacrament." After some 
further interruptions, Cornish gave up the struggle. The Chief 
Justice then summed up the evidence with considerable unfair- 
ness, treating Rumsey and Goodenough as witnesses of perfect 
credibility, and representing the prisoner's witnesses as utterly 
irrelevant, and his own solemn asseveration of his innocence as 
perfectly nugatory. " Why," he says, " should Rumsey de- 
liver this testimony, if it were not the testimony of his heart? 
and that which he says himself he had too long concealed out 
of the compassion he had for him." He takes not the slightest 
notice of the alleged inconsistencies in Rumsey's evidence at 
different times, or of the insufficiency of proof by two witnesses 
to sustain the indictment. The jury having been a short time 



116 SIR JOHN HOLT. 

absent considering their verdict, on their return, Cornish repre- 
sented that he had omitted to call Sheppard, at whose iiouse the 
treasonable consultation was alleged to have taken place, and 
who would contradict Rumsey in some material points. After 
a long parley, in the course of which he was repeatedly rebuked 
as "putting a mere trick on the Court and on the King's evi- 
dence," and insinuations were thrown out of his having practised 
upon Sheppard to get him out of the way of a crown subpoena, 
he was allowed at last to call him. Sheppard directly contra- 
dicted Rumsey as to the only fact which bore strongly against 
the prisoner in his evidence — that of Cornish's being present 
when the traitorous declaration was read ; but because he agreed 
with the other witness in facts not disputed by either party, he 
was represented by the Court as strongly confirming the latter's 
credibility. As Mr. Phillipps well remarks,* "with just as 
much reason might it have been said on the other side, that 
Sheppard derived credit from the confirmation of Rumsey, as that 
any credit was reflected on Rumsey from the confirmation of 
Sheppard." More than once, when borne down by the angry 
rigour of the judges, the unhappy prisoner cried out, " Pray, 
my lords, do not be offended : my life will do you no good." 
And when brought up to receive sentence (for the verdict was of 
course secured beforehand), while entreating intercession with 
the King for mercy, he touchingly exclaimed, "I hope, when 
you come to reflect upon what hath been said to-day, that per- 
haps you will be of another mind, and have more charity for me 
than you had upon my trial." He was executed four days after- 
wards. 

Such was the scene exhibited in the administration of justice 
between the crown and the subject, some three years only 
before the advancement of Sir John Holt. AVe turn from it to 
a very different picture. 

Sir Richard Graham (a Scottish peer by the title of Lord Pres- 
ton, and created an English Baron by James H. after his abdica- 
tion). Ash ton, and Elliott, indicted for a treasonable conspiracy to 
restore the dethroned king by the aid of a French force, were tried 

* State Trials Reviewed, vol. 2, p. 226, See also the spirited observa- 
tions of Sir John Hawles on this trial, 9 How. St. Tr. 455. 



SIR JOHN HOLT. 117 

at the Old Bailey, January 16th, 1690. The principal overt acts 
proved against them were the hiring and embarking on board a 
vessel for France, in the hold of which they were found con- 
cealed, and on the person of one of them (Ashton) papers con- 
taining unequivocal proof of their being engaged in the prose- 
cution of schemes of a deeply treasonable character.* Holt, 
Pollexfen, and several other judges, were assembled for their 
trial. Lord Preston having first inefiectually urged his claim of 
peerage, next pressed for a copy of the indictment before plead- 
ing (which by the uniform course of the decisions it was clear 
could not be allowed him), and insisted that he was entitled to it 
under the statute of 46 Edw. III. which gave the subject the 
benefit of free access to records *' whether they made for or 
against the King." The act not being in print among the 
statutes, an attested £opy from the roll was sent for and read at 
the prisoner's request ; and it was manifest that it had no appli- 
cation to the case, but related simply to records which might be 
made evidence of private rights. He continued nevertheless to 
urge the point just as strenuously as before ; and expressing his 
fear of giving offence by his pertinacity, the Chief Justice re- 
plied, " i\ly loid, nobody blames you, though your Lordship do 
urge things that are unnecessary or improper ; and we shall take 
care that it shall not tend to your Lordship's prejudice. We 
consider the condition you are in ; you stand at the bar for your 
life ; you shall have all the fair and just dealings that can be ; 
and the Court, as in duty bound, will see that you have no 
wrong done you." The prisoner next pleaded that he was not 
prepared for trial (he had had seven days' notice) and that his 
witnesses were not forthcoming. Pollexfen, the veteran " prac- 
liser in Hale's time," breaks out upon this with a flash of the 
old intemperate spirit. " The evidence that is to convict you," 
says he, " lies all on their side that are for the King, and I can- 

* Roger North (Examen, 410) has the effrontery to adduce this case 
as a parallel one to that of Sidney, and as justifying the reception in 
evidence of his unpublished speculative treatise, written many years 
before, and having no earthly connexion with the treason for which he 
was tried; and indulges in some coarse exultation over Sir John. 
Hawles for his supposed inconsistency in questioning the one case and 
prosecuting the other. 



118 SIR JOHN HOLT. 

not imagine where your witnesses should be, unless they are in 
France." Holt, on the other hand, replies to the request with 
moderation and dignity ; " If we had oath that they wanted 
material witnesses, and to material facts for their defence, that 
might be occasion for our further consideration; but shall we 
put ofl' a trial on a bare suggestion of the want of witnesses, 
naming neither person, nor place, nor matter such witness 
should prove? Sure that was never done." The prisoners then 
pleaded, and as they insisted on the full benefit of their several 
challenges, it became necessary to try them separately.* Lord 
Preston was first put to the bar, and his trial proceeded. The 
identity of the papers produced in evidence with those found in the 
vessel (which had been taken before the Privy Council, and had 
passed through several hands) was disputed by the prisoner. 
Serjeant Thompson, one of the crown counsel, thereupon inter- 
rupts him — " My Lord, you are not to sum up the evidence to 
the jury till we have done, nor to make your observations." 
Against this interruption the Chief Justice takes the prisoner's 
part; — " Brother, my lord opposes the reading of the paper as 
not well proved." The objection, however, was very rightly 
over-ruled ; and the case for the prosecution and defence being 
finished, the Chief Justice began to sum up the evidence. Lord 
Preston interrupted him repeatedly while stating, which he did 
with perfect fairness, the evidence as to the ownership and iden- 
tity of the treasonable papers. " Interrupt me as much as you 
please," he replies to one of the prisoner's apologies for doing 
so, " if I do not observe right ; I assure you I will do you no 
wrong wiUingly." — " No, my lord," the prisoner could not help 
acknowledging, "I see it well enough that your lordship would 
not." Holt's summing up was indeed so temperate,! that 
Pollexfen thought it necessary to request leave to address the 
jury also, and pressed far more pointedly, and with all the usual 
garnish of a " bloody and horrid popish treason," and so forth 
all the strong points against the prisoner. When the jury were 

* It is worthy of notice, that a juror Tvas set aside on his own sug- 
gestion that he was not a freeholder. 

■j- It would appear from a passage, in which he speaks of having re- 
peated the evidence as faithfully as his memory would serve him, as if 
he took no regular notes. 



SIR JOHN HOLT. 119 

about retiring to consider their verdict, Lord Preston desired 
permission to speak again. " Your lordship," said the Chief 
Justice, " should have said what you had to say before ; it is 
contrary to the course of all proceedings to have anything said 
to the jury after the Court has summed up the evidence; but 
we will dispense with it ; what have you to say ?" The 
prisoner then made a fresh address of some length to the jury, 
who however soon returned with a verdict against him. Ashton 
was next tried ; and the case for the crown having been proved 
by the same testimony as the former, he called witnesses to 
attest his Protestantism and loyalty. One of them, a nonjuring 
clergyman, having spoken of him as a good Protestant and a 
quiet subject, was asked by Pollexfen, " Pray what have you 
heard him say concerning his affection to King William and 
Queen Mary ?" — " I do not remember any thing of that," 
answers the witness. " Have you heard him say any thing to 
the contrary ?" — " No, I cannot remember that." One of the 
Crown counsel, Serjeant Tremain, proceeded upon this en- 
couragement to the still more unfair question, " What have you 
heard him say about his affection to King James ?" — but at 
once received from the Chief Justice the rebuke which he had 
refrained from administering to his brother on the bench : — 
" Do not ask him that, there may be a snare in that question." 
Upon the prisoner saying he had done. Holt reminded him of 
the most material fact proved against him (his importunity to 
have the papers thrown overboard), and said, "It seems ma- 
terial, and I would not have it forgot if you can answer it." 
Ashton's reply was equally honourable to the Chief Justice and 
to himself — "I humbly thank your lordship, and whatsoever 
my fate is, I cannot but own I have had a fair trial for my life, 
and I thank your lordship for putting me in mind." The 
prisoner was then subjected to some interrogation from the 
Court, obviously however with no unfair intention towards him, 
and in which the Chief Justice took very little part. He also 
was found guilty, and refusing to enter into any negotiation with 
the government, suffered according to his sentence: Lord Pres- 
ton, who made a sort of half disclosure of the conspiracy, ob- 
tained a pardon. 

It would be difHcult, we think, for a judge of our own time 



120 SIR JOHN HOLT. 

to go much beyond tlie courteous and charitable forbearance 
displayed by Lord Holt on this occasion. We might mul- 
tiply examples of the same kind. Thus, on Harrison's trial 
for the murder of Dr. Clench (IG93), the crown counsel calling 
a witness to prove some felonious design of the prisoner three 
years before, the judge exclaimed indignantly, "Hold, hold, 
what are you doing now ? Are you going to arraign his whole 
life ? Away, away, that ought not to be, that is nothing to this 
matter." Again, on Cranburne's being brought to the bar to 
plead, m irons (1696), the Chief Justice, hearing the clank of 
the fetters, instantly, and without any application made to him, 
demanded why the prisoner was brought in ironed, and directed 
the keeper to take them off, *' for they (the prisoners) should 
stand at their ease when they are tried." The keeper replied 
that he had no implements in court, on which he was ordered to 
send to the Gatehouse for them. After a short time spent in 
hearing some arguments as to the sufficiency of the indictment, 
an adjournment took place until the afternoon, " and in the 
meantime," repeats the Chief Justice as he goes out, "you 
keeper, knock off the prisoner's fetters." The merit of his 
conduct will appear the greater, when we recollect that it was 
not until the last year of William HI.'s reign (12 & 13 W. HI. 
c. 2) that the judges were rendered less dependent by law upon 
the crown than before, by having their commissions during good 
behaviour instead of during pleasure. Burnet tells us that it 
was owing to the representations of some of the judges, who 
thought it was not fit they should be out of all dependence on 
the court, that the king refused his assent to the bill which went 
to effect this salutary reform ten years sooner. We should find 
it difficult to believe that such advice could come from such a 
man as Holt; it was much more likely to proceed from the 
octogenarian Pollexfen, or the hackneyed politician Treby, if the 
bishop is right in affirming that it was given at all. 

Lord Holt's exposition of the principles of the criminal law 
was no less sound, clear, and unprejudiced, than his administra- 
tion of it was righteous and humane. He has indeed been cen- 
sured as having put a strained construction on the Statute of 
Treasons, when he ruled, in Sir John Friend's case, that a con- 
spiracy to levy war within the realm, without proof of any 



SIR JOHN HOLT. 121 

actual insurrection, was an overt act within the statute of com- 
passing the king's death ; and the historian Ralph goes so far 
as therefore to speak of him in such terms as these: — "The 
Lord Chief Justice Holt, who presided on this occasion, has in 
general the character of an upright judge ; but almost all lawyers 
have narrow minds, and by the whole drift of their studies find 
themselves biassed to adhere to the king against the prisoners." 
But not to mention that this doctrine has been recognized and 
promulgated by all succeeding authorities, we may content our- 
selves with opposing to such censure the eloquent eulogy of 
Erskine, who, in his defence of Hardy, spoke of Lord Holt and 
his reading of the Statute of Treasons in very different terms: 
" Gentlemen, Lord Holt illustrates this matter so clearly, that if 
I had anything at stake short of the life of the prisoner, I might 
sit down as soon as I had read it ; for if one did not know it to 
be an extract from an ancient trial, one would say it was admi- 
rably and accurately written for the present purpose ;" and then 
he proceeds to quote the commencement of the summing up in 
Friend's case, and to insist how much the proof against his client 
fell short of what the doctrine there propounded required to be 
made out against the accused. Another most important branch 
of the criminal law — that relating to homicide — has also been 
admirably illustrated by the learning and sagacity of Lord Holt, 
whose exposition of it, in the cases of R. v. Mawgridge and 
R. v. Plummer, has received high praise from one of the greatest 
authorities that can be quoted on this subject — we mean Mr. 
Justice Foster. In the former case particularly, he enters with 
much reason and learning into tiie distinctions between the dif- 
ferent kinds of felonious homicide. 

It was during Sir John Holt's occupation of the bench, that 
the prosecutions for witchcraft — of which the piety and wisdom 
of Hale had not sufficiently enlightened him to discover the 
cruel and fanatical absurdity — began to fall into general dis- 
credit. Of eleven poor creatures who were tried before him for 
this supposed crime, notwithstanding allthe accustomed evidence 
of fasting, vomiting pins, sucking imps, devil's marks, cures by 
pricking of the sorceress, and so forth, not one was convicted ; a 
result, no doubt, mainly owing to the good sense and humanity 
of the judge. The prejudice and ignorance on which so many 

9 



\22 SIR JOHN HOLT. 

impostures had subsisted were after a while so far overcome, 
that in the year 1704, a fellow named Hathaway was brought 
to trial, and convicted as a common cheat, for pretending to be 
bewitched by a poor woman, whom he had indicted for the 
crime at the preceding assizes. By a well-contrived scheme, 
the knavery of his pretences to a ten weeks' fast was discovered 
much sooner than, in our own time, it took many wise heads to 
detect a cunning impostor of the same description. Numerous 
witnesses, nevertheless, stoutly deposed to their assured belief 
that Mr. Hathaway's ailments — his expectoration of pins, his 
universal pains, his abhorrence of victuals — were all owing to 
the malignant influence of the witch. One of his witnesses, one 
Dr. Hamilton, whose faith seemed rather more staggering than 
that of the others, was first asked by the Chief Justice, "Doc- 
tor, do you think it is possible in nature for a man to fast a fort- 
night ?" — To this the doctor could not but reply in the negative, 
and was then pressed with a more home inquiry — " Can all the 
devils in hell help him to fast so long?" — "Truly, my lord," 
replies the witness, "I think not." The jury were brought 
with very little difficulty to be of the same opinion, and Mr. 
Hathaway's conviction, and elevation to the pillory, appear to 
have pretty well given the coup-de-grace to criminal accusations 
of witchcraft, of which we believe there were at most but one 
or two subsequent instances in England. The report of this 
case, in the fourteenth volume of the State Trials, is well worth 
the perusal of those who are curious in the history of human 
folly or fanaticism. 

We observed in the outset that Lord Holt had little claim to 
distinction as an orator. In one case, however, which is to be 
found among the trials for treason in 1696, in passing sentence 
upon the prisoner (Mr. Knightly), who had pleaded guilty, he 
almost rises into eloquence. After expatiating on the enormity 
of the crime confessed by the prisoner, he concludes in these 
terms : — 

" There being, then, nothing to be said that can paUiate such 
a crime as that of which you are convicted, but you having 
taken a different course the last time you were at the bar from 
what you took at first, you have relinquished your plea of not 
guilty, and have confessed the indictment. I wish, out of charity 



SIR JOHX HOLT. 183 

to your person, this was as sincere as I think it was prudent ; 
for after several convictions of others that were your accom- 
plices, you could not be a stranger to the evidence upon which 
they were grounded ; you must therefore, in all probability, have 
expected to have undergone the same fate. If your confession 
he a real effect of your repentance, you will have the advantage 
of it in the next world ; what consequence it will have in this I 
cannot say ; ' for the heart of the king is in the hand of the Al- 
mighty, which, as the rivers of water, he turneth whithersoever 
he will.' Live therefore for the time to come in expectation of 
a speedy death, -and prepare yourself to appear before another 
judgment-seat : to the making of which important preparation I 
shall dismiss you, first discharging the court of that duty now 
incumbent on it, in giving that judgment which the law hath ap- 
pointed." 

It was the fortune of the Lord Chief Justice Holt to be 
placed more than once in a position, in which the sincerity of 
his attachment to constitutional principles, and the personal 
intrepidity of his character, were tried by the strongest lests. 
For the independent courage with which he exercised his judi- 
cial functions, he became in turn obnoxious to both Houses 
of Parliament. Familiar as these passages of his history must 
be to many of our readers, a narrative of his life would be most 
unjustly imperfect, in which they were not spoken of in some- 
thing of detail. 

Charles Knollys, claiming to be Earl of Banbury as heir to 
his father Nicholas (whose legitimacy was long disputed, and 
finally denied by a celebrated parliamentary judgment in our 
own time), was indicted as a commoner for the murder of Cap- 
tain Dawson. The indictment being removed by certiorari into 
the King's Bench, the defendant pleaded misnomer in abate- 
ment, and set forth his title to the earldom. To this plea the 
Attorney-General replied, that the defendant had already peti- 
tioned the House of Lords to be tried by his peers, and that the 
House, according to the law and custom of parliament, had re- 
solved that he had no right to the dignity of Earl of Banbury, 
and had dismissed his petition. The defendant demurred to 
this replication ; and after the case had been depending for a 
considerable time, the Court, by a unanimous judgment, decided 



124 SIR JOHN HOLT. 

that the replication was no suflicient answer to the plea ; the 
grounds of their determination, as disclosed in the elaborate 
judgment of the Chief Justice, being that the defendant did not 
plead his plea before them to make out a tide to the peerage, 
but simply by way of misnomer or abatement of the indictment ; 
that the resolution of the Lords was not a judgment by the 
court of parliament, which consisted of King, Lords, and Com- 
mons, though the judicial power resided in the Lords ; or if it 
was in form a judgment, the House of Peers had no jurisdiction 
of an original cause ; there was no plea regularly depending 
before them as to the tide to the earldom, which could be 
brought under their cognizance only by petition to the crown, 
referred by the crown to the consideration of the Peers ; and 
that a peer did not, by submitting his trial to the House of 
Lords, thereby submit to them his title to the peerage. "The 
House of Peers," he admitted, " has jurisdiction over its own 
members, and is a supreme court; but it is the law which has 
invested them with such ample authority, and therefore it is no 
diminution to their power to say that they ought to observe 
those limits which this law hath prescribed for them, which in 
other respects hath made them so great." As to the averment 
in the replication, that the judgment of the Lords was "secundum 
legem et consuetudinem," he said, " he did not know any reason 
for this allegation, which the king's counsel had inserted, if it 
was not to frighten the judges; but he did not regard it; for 
though he had all respect and deference for that honourable body, 
yet he sat there to administer justice according to the law of the 
land and according to his oath, and that he ought not to regard 
anything but the discharge of his duty; and as to the law and 
custom of parliament for the determination of inheritances, he 
knew not any but the common law of England, which is the 
birthright of every Englishman, and he would be glad to be 
satisfied by any man, if there be any such custom and law of 
parliament, where it is ; for a custom ought to consist in usage, 
and he desired to see the precedent of such judgments ; and as 
to the law of parliament, he did not know of any such law, and 
every law which binds the subjects of this realm ought to be 
either the common law and usage of the realm, or an act of par- 
liament." 



SIR JOHN HOLT. 125 

This judgment was resented by the House of Lords as an in- 
vasion of their privileges ; the terms in which it was delivered 
were probaby not less distasteful to them; and a committee 
having been appointed to consider KnoUys's claim (which was 
afterwards regularly referred by the crown to the House), the 
Chief Justice was required to give an account of the proceedings 
in the King's Bench, He accordingly appeared before the com- 
mittee (Feb. 5th, 1697), and it was demanded of him why the 
Court of King's Bench had thought fit to quash the indictment, 
after the determination of the House against the defendant's 
claim. His answer, marked with all the spirit and determination 
of his character, derived, no doubt, some additional pungency of 
expression from his recollection of the arbitrary inquisition to 
which, since the Revolution, several other judicial decisions had 
already been subjected in parliament: — "I acknowledge the 
thing. There was such a plea, and such a replication. I gave 
my judgment according to my conscience. We are trusted with 
the law : we are to be protected and not arraigned, and are not to 
give reasons for our judgment; and therefore I desire to be ex- 
cused from giving any." Having thereupon withdrawn, and 
after a short time being called in again, he was asked whether he 
persisted in the answer he had given. He replied: — "I gave 
judgment as it appears upon the record. It would be submitting 
to an arraignment for having given that judgment, if I should 
give any reasons here : I gave my reasons in another place at 
large. If your lordships report this to the House, I desire to 
know when you do so, that I may desire to be heard in point of 
law. This judgment is questionable in a proper shape ; but / 
am not to be questioned for any judgments ; I am not in any way 
to be arraigned for what I do judicially: the judgment may be 
arraigned in a proper method by writ of error. I might answer 
if I would, but I think it safest for me to keep under the pro- 
tection the law has given me : I look upon this as an arraign- 
ment ; I insist upon it, if lam arraigned, I ought not to answer." 
Mr. Justice Eyre, the only other surviving member of the Court 
who had concurred in the obnoxious judgment, was next called 
in, and answered to the same effect, although in terms much 
more humble and apologetic. The committee made a special 
report of these refractory proceedings, and the Chief Justice was 



126 SIR JOHN HOLT. 

summoned to answer for lliem to the House itself. He declared 
with as much boldness as before, — " I never heard of any such 
a thing demanded of any judge as to give reasons for his judg- 
ment. I did think myself not obliged by law to give that answer. 
"What a judge does in open court, he can never be arraigned for 
it as a judge." Finding the terrors of their authority ineffectual, 
they tried to gain their point by assuring him that the inquiry 
was not at all intended as an accusation. He was no more to be 
cajoled than intimidated : — " I have other reasons to induce me 
not to comply," was his concise rejoinder. The House was 
now in vehement indignation ; a day was appointed on which the 
two recusant judges were ordered to attend again, and with them 
a judge of each of the common law courts ; and it was the sub- 
ject of some angry debate whether the Chief Justice, the leader 
of this audacious resistance, should not be sent to expiate his 
contumacy in the Tower. Before, however, the day arrived for 
the further prosecution of the affair, the indignant peers, finding 
■with what intractable materials they had to deal, had cooled into 
the discreet resolution of letting the whole business drop quietly 
into oblivion. 

It was on a much more important ocsasion that Sir John Holt 
came into collision with the House of Commons — in the memo- 
rable case of the Aylesbury burgesses, which gave birth to a 
whole campaign of hostilities between the two houses of parlia- 
ment. The judgment in which, contrary to the opinions of the 
other three judges of his court, he asserted the right of an elector 
to claim damages at law, in an action on the case, against the 
returning oiHcer who refused to record his vote, was, as is well 
known, solemnly affirmed in the House of Lords; and is familiar 
to almost every lawyer. We will extract from it only one or 
two passages which mark the masculine and independent tone 
of his opinions. "I am of opinion," he began, " that judgment 
ought to be given for the plaintiff. My brothers differ from me 
in opinion, and they all differ from one another in the reasons of 
their opinions. I will consider their reasons. My brother 
Gould thinks no action will lie, because the defendant, as he 
says, is a judge : my brother Powys, indeed, says he is no judge, 
but quasi a judge : but my brother Powell is of opinion, that the 
defendant neither is a judge nor any thing like a judge: and that 



SIR JOHN HOLT. 127 

is true, for he is only an officer to execute the precept." 

"First, I will maintain that the plaintiff has a right and privilege 
to give his vote ; secondly, in consequence thereof, that if he be 
hindered in the enjoyment or exercise of that right, the law gives 
him an action against the disturber ; and that this is the proper 
action given by the law." He proceeded to examine historically, 
with much learning and research, the law of election of burgesses 
to parliament; and then passed to the other head of his argu- 
ment: — 

" If the plaintiff has a right, he must of necessity have a means 
to vindicate and maintain it, and a remedy if he is injured in the 
exercise or enjoyment of it; and indeed it is a vain thing to 
imagine a right without a remedy; for want of right and want 

of remedy are reciprocal It is said there is no hurt or 

damage to the plaintiff; but surely every injury imports a damage, 
though it does not cost the party one farthing, when a man is 
thereby hindered of his right. If a man gives another a cuff on 
the ear, though it cost him nothing, no not so much as a little 
diachylon, yet he shall have his action, for it is a personal injury. 
It is no objection that it will occasion multiplicity of actions ; for 
if men will multiply injuries, actions must be multiplied too; 
for every man that is injured ought to have his recompense. 

"But my brothers say, we cannot judge of this matter, be- 
cause it is a parliamentary thing. ! by all means be very 
tender of that ! Besides, it is intricate, and there may be con- 
trariety of opinions. But this matter can never come in question 
in parliament ; for it is agreed that the persons for whom the 
plaintiff voted were elected, so that the action is brought for 
being deprived of his vote ; and if it were carried for the other 
candidates, his damage would be less. To allow this action will 
make public officers more careful to observe the constitution of 
cities and boroughs, and not to be so partial as they commonly 
are in all elections, which is indeed a great and growing evil, and 
tends to the prejudice of the peace of the nation. But they say 
that this is a matter out of our jurisdiction, and we ought not to 
enlarge it. I agree we ought not to encroach or enlarge our 
jurisdiction; by so doing we usurp both on the right of the 
queen and the people ; but sure we can determine on a charter 
granted by the king, or on a matter of custom or prescription, 



128 SIR JOHN HOLT. 

when it comes before us, without encroaching on the parliament, 
and if it be a matter within our jurisdiction, we are bound by 
our oaths to judge of it. This is a matter of property, determin- 
able before us. 

*' The parUament cannot iudge of this case, nor give damages 
to the plaintiff for it; they cannot make him a recompense. Let 
all people come in and vote fairly ; it is to support one or the 
other party, to deny any man his vote. By my consent, if such 
an action comes to be tried before me, I will direct the jury to 
make him pay well for it; it is denying him his English right ; 
and if this action be not allowed, a man may be for ever deprived 
of it. It is a great privilege to choose such persons as are to 
bind a man's life and property by the laws they make." 

Several other electors, who were in the same situation as the 
plaintiff Ashby, having subsequently commenced similar actions, 
the House of Commons forthwith resolved that they were there- 
by guilty of contempt and breach of privilege, and committed 
them to Newgate. They sued out writs of habeas corpus into 
the King's bench ; the return set forth the warrant of commit- 
ment ; the twelve judges met to consider the case ; and the Lord 
Chief Justice was opposed to them all, in the opinion that the 
defendants were entitled to their discharge. He said that this 
was not such an imprisonment as the freemen of England ought 
to be bound by ; for that this, which was only doing a legal act, 
could not be made illegal by the vote of the House of Commons ; 
neither house of parliament, nor both houses jointly, could dis- 
pose of the liberty or property of the subject; to this purpose 
the Queen must join, and it was in the necessity of their several 
concurrences to such acts that the great security for the liberty 
of the subject consisted. " If the House of Commons," he pro- 
ceeded, " have any such privilege as can be broken by bringing 
this action, they ought to show precedents of it. The privileges 
of the House of Commons are well known, and are founded 
upon the law of the land, and are nothing but the law. As we 
all know, they have no privilege in cases of breach of the 
peace. And if they declare themselves to have privileges which 
they have no legal claim to, the people of England will not be 
estopped by that declaration." Clarendon's expression having 
been cited, "that a judge can neither punish nor examine the 



SIR JOHN HOLT. 129 

breach of privilege, nor censure the contempt," he said he would • 
oppose to it a higher authoritj^ than Clarendon's — King Charles 
the First, who, in his answer to the declaration and votes of the 
two Houses concerning the removal of the magazine from Hull, 
.told them " he very well knew the great and unlimited power 
of a parliament ; but he knew as well, that it was only in that 
sense as he was a part of that parliament ; without him and 
against his consent, the votes of either or both Houses together 
must not, could not, should not (if he could help it, as well for 
his subjects' sake as for his own), forbid any thing that was en- 
joined by the law, or enjoin any thing that was forbidden by the 
law." 

The House of Commons immediately fell with fury on all 
who had been concerned in procuring the writs o{ habeas corpus ; 
voted that the counsel who argued for the defendants had com- 
mitted a breach of privilege, and issued warrants for their appre- 
hension also ; one of them (Mr. Lechmere) narrowly escaped 
the clutches of the serjeant-at-arms by descending, by means of 
his blankets and a rope, from the window of his chambers in the 
Temple ; two others were consigned to Newgate. It has been 
said, moreover, and the story has been retailed as genuine by 
every anecdote-monger for the last half-century, that the Chief 
Justice himself was visited by the same formidable functionary, 
and summoned to appear at the bar of the House to purge him- 
self of his share in the contempt. "That resolute defender of 
the laws," pursues the story, " bade him with a voice of autho- 
rity be gone ! on which they sent a second message by their 
Speaker, attended by as many members as espoused the mea- 
sure. After the Speaker had delivered his message, his lord- 
ship replied to him in the following remarkable words : * Go 
back to your chair, ]\Ir. Speaker, within these five minutes, or 
you may depend upon it I will send you to Newgate ! You 
speak of your authority, but I'll tell you that I sit here as an 
interpreter of the laws and a distributor of justice, and were the 
whole House of Commons in your belly, I would not stir one 
foot !' The speaker was prudent enough to retire, and the 
house were equally prudent in letting the affair drop." We 
grieve to be under the necessity of pronouncing the whole of this 
dramatic picture the pure invention of some ingenious fabulist. 



130 SIR JOHN HOLT. 

Not only does no bint appear of so remarkable an occurrence, 
in any of tbe King's Bencb Reports ; but in the Journals of the 
Commons, where all the proceedings in the Aylesbury case are 
minutely detailed, not a word is to be found of any motion, 
resolution, or proceeding in any way impeaching the conduct or 
language of the Chief Justice. His answers to the House of 
Lords in Knollys's case evidently supplied the foundation upon 
which this "interesting incident" has been constructed. How 
little, indeed, he recked of the omnipotence of parliamentary 
authority, a circumstance noted in Lord Raymond's Reports 
demonstrates quite as emphatically. A question arose whether 
a writ of error to the Lords was grantable in a particular case 
(Bishop of St. David's v. Lucy, Ld. Raym. 539) : the House, 
after hearing the Chief Justice's reasons, determined that they 
could not entertain the case; "but note," adds the reporter, 
" that Holt, C. J., told me, if the House of Lords had been of 
opinion that a prohibition ought to be granted, he never would 
have granted it.''^ 

Lord Ellenborough, who speaks of Holt's conduct in the 
Aylesbury case, and of the general independence and manliness 
of his opinions and character, in terms of high eulogy, seems, 
moreover, almost to convey an implied approval of his legal 
judgment in that case, when thus expressing himself:* "if a 
commitment appeared to be for a contempt of the House of 
Commons generally, I would neither in the case of that court, 
nor of any other of the superior courts, inquire further ; but if it 
did not profess to commit for a contempt., hwi for some matter 
appearing on the reiwm, which could by no reasonable intend- 
ment be considered as a contempt of the court committing, but a 
ground of commitment palpably and evidently arbitrary, unjust, 
and contrary to every principle of positive law and natural jus- 
tice ; I say, that in the case of such a commitment, (if it ever 
should occur, but which I cannot possibly anticipate as ever 
likely to occur,) we must look at it and act upon it as justice may 
require, from whatever court it may profess to have proceeded." 
Now, in The Queen v. Paty, the return set forth the w- arrant of 
commitment, which appeared on the face of it to be for a con- 

* Burdelt v. Abbott, 14 East, 150. 



SIR JOHN HOLT. 131 

tempt in bringing an action which the highest judicature in the 
realm had declared to be a legal action : it was upon this very 
ground, — it was because the matter thus appearing on the return 
" could by no reasonable intendment be considered a contempt 
of the court committing," — that Lord Holt proceeded to look at 
and act upon the case as justice seemed to him, and to every 
unprejudiced judgment in the kingdom, to require. 

"While adverting to the questions of constitutional right which 
came under his cognizance, we must not omit to notice the 
celebrated " Bankers' Case," in which he pronounced an ela- 
borate judgment, opposed to that of Lord Keeper Somers, and 
holding, first, that the sovereign had power to alien the revenue 
in question (the hereditary excise) so as to bind his successors; 
and next, that the bankers had pursued the proper remedy by 
petition to the Court of Exchequer. Lord Somers, it is well 
known, reversed the judgment of the Exchequer on his own 
opinion, in opposition to that of the majority of the judges; but 
that reversal was set aside again in the House of Lords, where 
Holt maintained his original opinion with more effect, and indeed 
with so little deference to that of the lord chanceller, that some 
warmth of language appears to have been excited between them. 
Somers, admitting that the despoiled bankers had a right, 
affirmed that they had no remedy ; "to which Holt answered 
very resolutely, that was nonsense, for if they had lost one they 
had lost the other ; but no Englishman could lose either but by 
his own default, which was not their case. Upon that (adds 
Lord Dartmouth, from whom we borrow this account), after a 
very warm debate, the decree was set aside, and Lord Somers 
fell ill, and never appeared upon the woolsack more." On his 
dismissal, a few weeks afterwards, the great seal was offered in 
the first place to Sir John Holt, whose short reply was, that he 
had never had but one Chancery cause (meaning, we presume, 
as an advocate), which he lost, and consequently he could not 
think himself fitly qualified for so high a post ; which, moreover, 
he had other good reasons, in the then state of parties, and the 
extreme uncertainty of its tenure, to prevent him from desiring. 
The attorney-general. Sir Thomas- Trevor, was found (just at 
that time) equally unambitious, and the seals at last found their 
way into the keeping of Sir Nathan Wright, a man, as it appears 



132 SIR JOHN HOLT. 

from tlic reports of liis contemporaries, at once incompetent and 
corrupt. 

Great as are the respect and gratitude with which all right- 
minded Englishmen must regard the memory of the Lord Chief 
Justice Holt, both as a criminal judge and an interpreter of con- 
stitutional law, he has no less a title to the veneration of every 
philanthropist, as the first judge who declared the soil of Britain 
incapable of being profaned by slavery. The Court of Common 
Pleas, in 1693, had adjudged that trover would lie for a negro 
boy, *' for they were heathens, and therefore a man might have 
property in them, and that the Court, without averment, would 
take notice that they were heathens."* But within a year or 
two afterwards, when an action of trespass was brought in the 
King's Bench for taking away a negro slave,! the whole Court 
being of opinion that the action would not lie (because the aver- 
ment of the loss of service had been omitted in the declaration), 
the Chief Justice added, that in his opinion trover would not 
lie ; and in a subsequent case, in 1707,± it was determined 
accordingly, by the whole Court, that trover did not lie for a 
negro any more than for any other man ; "for by the common 
law," said Lord Holt, " no man can have a property in another, 
but in special cases, as in a villein, or a captive taken in war ; 
hut there is Jio such thing as a slave by the law of En glands 
It was not, nevertheless, until the solemn decision of the same 
Court in Somerset's case, in 1772, that this became an unques- 
tioned principle of law, and could be made the exulting theme 
of the most thoroughly English among our modern poets. 

An anecdote is preserved of Sir John Holt, which (if it also 
be not apocryphal) shows the constitutional jealousy he enter- 
tained on a subject which has recently much occupied the 
public mind — the employment of military force in the suppres- 

* Gelly V. Cleve, C. B. 5, W. & M. See also Butts v. Penny, 3 Keble, 
685 (1678). 

f Chamberlain v. Harvey, Ld. Raym. 146. 

t SmJlli V. Gould, Ld. Raym. 1275, Salk. 666. There is also another 
case of Smith v. Browne, in the same page of Salkeld, in which Lord 
Holt is reported to have held, in arrest of judgment, that *' as soon as 
a negro comes into England, he becomes free : one may be a villein in 
England, but not a slave." The date of this latter case does not appear. 



SIR JOHN HOLT. 133 

sion of domestic tumults. A riotous mob had assembled with 
threats of tearing down a house in Holborn, which was sus- 
pected to be used as a place of decoy and imprisonment for 
young persons who were kidnapped to be shipped to the new 
American settlements ; an infamous practice of which we meet 
with many traces in that age. A party of the guards were 
ordered out to disperse them, and an officer was despatched to 
the Chief Justice to desire that a civil force might be directed to 
attend the military, and give their proceedings a greater counte- 
nance of legal authority. " And suppose," asked the judge, " the 
populace should not disperse at your appearance, what are you 
to do then?" — "Sir, we have orders to fire upon them," an- 
swered the officer. "Have you. Sir?" replied Holt; "then 
take notice of what I say ; if there be one killed, and you are 
tried before me, I will take care that you and every soldier of 
your party shall be hanged. Go back," he continued, "to those 
who sent you, and acquaint them that no officer of mine shall 
attend soldiers ; and let them know at the same lime that the 
laws of this kingdom are not to be executed by the sword ; these 
matters belong to the civil power, and you have nothing to do 
with them." And ordering his tipstaves, with a few constables, 
to attend him, he went himself to the scene of the tumult, 
(which probably was not of a very formidable nature,) expostu- 
lated with the rioters, assured them that the subject of their 
indignation should undergo a full inquiry by law, and prevailed 
upon them to disperse peaceably. 

We may surmise, moreover, from a circumstance recorded in 
one of Speaker Onslow's notes to Burnet's History, that the 
Chief Justice, if he had lived in these days, would have lent 
no great countenance to the Constitutional Associations and 
Vice-Suppressing Societies with which the present generation 
has been blessed. In the early part of Queen Anne's reign, 
many prosecutions were set on foot by the " Societies of Re- 
formation," which established themselves to root out irreligion 
and immorality from the land by the strong hand. " The 
Lord Chief Justice Holt," says the annotator, " was no friend 
to them ; he did not approve of voluntary combinations for 
putting laws into execution, which frequently ran into violences 
and personal revenges, and other irregularities ; some persons too 



134 SIR JOHN HOLT. 

severely prosecuted, while others were connived at. He had 
met, it was said, with several instances of this in the prosecu- 
tions carried on by this society, upon bad information from their 
agents, the ' reforming constables,' who seldom acted upon prin- 
ciple, and were often corrupted. He was thought, however, to 
be too much sharpened in this matter, and against some very 
good men, who meant very well." Indeed, the infamously cor- 
rupt and inefficient state of the magistracy and police of the 
metropolis at this period made it almost a matter of necessity to 
resort to voluntary associations of the kind, if anything like 
morality or decency was to be upheld at all. 

We have yet to regard Sir John Holt in that capacity in 
which his merits are most familiar to the profession — as head of 
the supreme court of civil judicature. The decisions of the 
King's Bench, during the long period when he presided in it, 
are spread over many books of Reports, of which those of Lord 
Raymond, Shower, Skinner, and the collection called the 
Modern Reports,* may be distinguished as the fullest and most 
comprehensive; those also of Carthew, Levinz, Salkeld, &c. 
have a high reputation for legal accuracy. The volume entitled 
Reports tempore Holt, which was not published until 1738, con- 
tains an abridgment from the other Reports of all the cases 
determined before him, with many additional ones then first 
printed from private manuscripts. On the learning and authority 
of Lord Holt's judgments it is needless to enlarge ; in respect to 
style and manner, they are chiefly distinguished by great per- 
spicuity and simplicity of expression, by a logical precision in 
the arrangement of his arguments, which he generally subdivides 
(we speak of course of his more elaborate judgments) so as to 
exhaust in detail every view of which the subject is capable ; 
and by a careful deduction of his conclusions from expressed 
premises : not that we mean to affirm that his logic is not occa- 

* These latter were published without the sanction of the judges, and 
fell accordingly more than once under the judicial ban. A case being 
cited from 2 Modern, " Holt C. J., in ird said, that no books ought to be 
published but such as were licensed by the judges ;" and on another 
occasion he spoke of " those scamhling Reports," that would make 
posterity think ill of his understanding and that of his brethren on the 
bench. 



SIR JOHN HOLT. 135 

sionally at fault, or his arrangement imperfect, nay, sometimes 
inaccurate, and his phraseology now and then obscured by 
quaintness or carelessness of expression. Like Lord Mansfield, 
he not unfrequently illustrates his reasonings by references to 
the corresponding provisions of the civil law ; a branch of know- 
ledge on which it was the more meritorious to be well informed, 
inasmuch as it was in that age even less cultivated by the gene- 
rality of lawyers than at present, nay, had fallen almost into 
absolute neglect if not discredit. His well known judgment in 
the great case of Coggs v. Bernard,* which has been justly 
termed by high authority "a most masterly view of the whole 
subject of bailment," affords an apt illustration of all these ex- 
cellences and peculiarities. No higher eulogium could possibly 
have been pronounced upon this celebrated argument than that 
expressed by Sir William Jones, when he is content that his 
own admirable Essay shall be considered merely as a commen- 
tary upon it : yet every lawyer will probably agree that he has 
shown its division of the subject to be imperfect, and its reason- 
ings on one or two points inconclusive if not inaccurate. It is 
almost amusing to observe how entirely some of the reporters, 
in particular Lord Raymond, seem to have considered the 
whole legal authority of the Court as residing in the Chief Jus- 
tice. The latter, after giving a condensed report of the argu- 
ments of counsel, generally notes the answer they received from 
the Court, thus . " Sed non allocatur ; and;;er Holt, chief jus- 
tice, (fee. (fee. :" scarcely ever noticing in detail the arguments 
of the other judges, unless in cases where there was a difference 
of opinion on the bench. In such cases, and they were by no 
means unfrequent, the Chief Justice, even where he stood alone, 
invariably asserted his own opinion with the same decided con- 
fidence of its being the right one, which we have seen him ex- 
press in the Aylesbury case : a confidence, indeed, in which he 
was borne out by repeated decisions of the tribunals of appeal in 
accordance with his judgment. None of that anxious deference 
to his brothers' better judgment — none of that amiable concern 
at being compelled to dissent from it, which judges of this more 
polished and courteous generation have been wont to express, is 

* Lord Raym. 912. 



136 SIR JOHN HOLT. 

to be seen in him ; occasionally, in truth, he treats the arguments, 
not merely of the counsel, but of his learned brethren beside him, 
with a brusquerie amounting to something very like avowed 
contempt. In this self-assured tone of feeling and expression, 
as well as in the grasp and vigour of his intellect, he appears to 
have borne a considerable resemblance to Lord Thurlow; who 
fell, however, sadly short of him in the higher attributes of inde- 
pendence and public virtue. One of the most important cases 
(after Ashby v. White) in which he dilFered from all his col- 
leagues, was that of Lane v. Cotton, where he argued that the 
Postmaster-General was personally liable to make good the 
amount of an exchequer bill abstracted from a letter in the 
Post Office. His judgment in that case has been again — and, 
we agree, rightly — overruled by a solemn determination of the 
same Court;* but of the weight that was then attached to it a 
sufficient proof is afforded by the fact, that the defendant, not- 
withstanding the determination of the other three judges in his 
favour, paid the money rather than encounter the chances of a 
writ of error. One or two instances occur of an extraordinary 
revolution of opinion in his dissident brethren, after the delivery 
of his judgment. Thus in the case of the Queen v. Tutchin, 
(6 Modern, 287), in which the judges Powys and Gould deli- 
vered opinions one way, and Powell and Holt the other, the re- 
port concludes with this postscript; "Note, Powys justice 
recanted instanter ; and Gould justice hsesitabat.^^ Occasion- 
ally we have the reporter's opinion of the other members of the 
Court pretty plainly intimated ; thus, in a case (Brewster v. 
Kitchin, Ld. Raym. 317), where, the Court being unanimous 
on the question which had been brought before them in argu- 
ment, Holt started an objection that occurred to him in the 
course of pronouncing his judgment, namely, that the covenant 
sued upon, being a personal covenant, did not bind the defendant 
as assignee of the land ; " the other three judges," says Lord 
Raymond, " seemed to be in a surprise, and not in truth to com- 
prehend this objection, and therefore they persisted in their 
former opinion, talking of agreements, intent of the party, bind- 
ing of the land, and I know not what." Now and then, as was 

• Whitfield V. Le Despencer, Cowp. 754. 



SIR JOHN HOLT. 137 

not unnatural, a /z^ occurs between the self-resolving Chief Jus- 
tice and a sturdy brother. The following smart dialogue between 
him and Mr. Justice Dolben, who appears to have been made of 
metal almost as unmalleable as himself, enlivens the report of a 
case in Shower. (Rex v. Bishop of London, 1 Show. 469.) 
The cause was about to be adjourned for a third argument, but 
the Chief Justice took occasion to state his present impression 
on the main question in dispute — the right of the Crown to pre- 
sent to a benefice on the incumbent's promotion to a bishopric. 
Hereupon the other learned judge, whose opinion w^as the other 
way, interposes with — " I pray, ray lord, let us deliver no opi- 
nion till it be argued again." — "I do not give my opinion, bro- 
ther," replies the Chief Justice. "No, ray lord," pursues 
Dolben, " it is a case of great consequence, and that point I 
desire raay be argued as well as any of the rest." His lordship 
kindles a litde at this : "But, brother, if I be ready to give my 
opinion, I hope you will not restrain rae." — " If it be to be 
argued again," repeats the other, " I desire the whole case may 
be argued entire." — " Well, brother," concludes the Chief Jus- 
tice, "I tell you I do not give any opinion, but only we are 
breaking the case, that we may show what is in doubt with 
any of us." Such an interchange o^ fraternal courtesies occur- 
ring now-a-days would electrify the back rows of the Queen's 
Bench. 

Lord Chief Justice Holt maybe said to have sat by the cradle 
of our systera of comraercial law, which afterwards, under the 
fostering genius of Lord Mansfield, was expanded and raatured 
into such growth and symmetry. It was under his auspices that 
the general negotiability of bills of exchange was first recog- 
nized in the courts of law. But he resisted the extension of the 
same privileges to promissory notes (or as they were then 
termed, goldsmiths' notes), which had already come into almost 
universal circulation araong the raercantile comraunity, with a 
tenacity which wore almost the appearance of hostility to the 
whole raonied tribe. He designated thera as " a new kind 
of specialty invented in Lorabard Street, which attempted in 
these matters of bills of exchange to give laws to AVestminster 
Hall ;" and declared on another occasion, " I am of opinion, 
and always was, notwithstanding the noise and cry that it is the 

10 



138 SIR JOHN HOLT. 

use of Lombard Street, as if the contrary opinion would blow 
up Lombard Street, that the acceptance of such a note is not 
actual payment." Such, indeed, was his admiration of the 
common law in all its venerable integrity, that he was not easily 
brought to view as an improvement any innovation upon it by 
whatever authority ; and reverenced even some of its barbarisms 
which the common consent of later generations has swept 
away. When the Chief Justice Treby designated the appeal 
of murder as a proceeding that ought not to be encouraged. 
Holt's constitutional sympathies were up in arms at once; "he 
wondered it should be said that an appeal was an odious prose- 
cution : he esteemed it a noble remedy, and a badge of the rights 
and liberties of an Englishman." To the most important 
branches of our mercantile law — those of shipping and marine 
insurance — the Courts were as yet comparatively strangers. 
From the Revolution down to Lord Mansfield's elevation to the 
bench, not more than fifty insurance causes were tried in all ; 
and instead of the luminous and admirable elimination of legal 
principles which the summings-up and judgments of that great 
lawyer presented, the judges were accustomed to leave the 
whole mass of facts to the jury together, and trust to the reme- 
dial efTect of a general verdict one way or the other. Unformed, 
however, as our mercantile code remained, until the multiplied 
relations and complicated interests of a commerce increased a 
hundred-fold called into exercise the powers of its great archi- 
tect, whoever looks through the reports of Lord Holt's decisions 
will find a vast number of interesting points redeemed from un- 
certainty and confusion by his learning, experience and good 
sense. 

On the accession of Queen Anne, the Chief Justice, holding 
his office by writ, although it was quamdiu se bene gesserit, 
held it to be ipso facto determined by the demise of the crown, 
notwithstanding the recent provisions of the Act of Settlement ; 
and received accordingly a new writ of appointment. He con- 
tinued to preside with no less honour to himself and benefit to 
his country for eight years longer, until, towards the close of the 
year 1709, his health began sensibly to decline. Thursday, the 
9th of February, 1709-10, was the last day he sat in court: he 
lingered without hope of amendment until the 5th of the fol- 



SIR JOHN HOLT. 139 

lowing March, when he expired, universally honoured and 
deplored, at his house in Bedford Row. His remains were 
deposited in the church of Redgrave, in Suffolk, where he had 
purchased from the family of the Bacons the manor and house of 
that name — the same in which Sir Nicholas Bacon had enter- 
tained Queen Elizabeth, as may be seen in the Royal Progresses. 
His brother and heir erected over his grave, at a cost of ^61500, a 
magnificent monument of white marble, which represents him 
seated in his judicial robes under a canopy of state, with em- 
blematical figures of Justice and Mercy on either side ; a design, 
as our readers may remember, almost identical with that of Lord 
Mansfield's monument in Westminster Abbey. 

To the testimonies we have already given of the judicial 
character and public virtues of this eminent magistrate, we will 
add only the eloquent portrait drawn of him by Sir Richard 
Steele, in the fourteenth number of the Tatler, where he is 
described under the appellative of Verus. — " It would become 
all men as well as me, to lay before them the noble character of 
Verus the magistrate, who always sat in triumph over and con- 
tempt of vice. He never searched after it, or spared it when it 
came before him ; at the same time, he could see through the 
hypocrisy and disguise of those who have no pretence to virtue 
themselves but by their severity to the vicious. He was a man 
of profound knowledge of the laws of his country, and as just 
an observer of them in his own person. He considered justice 
as a cardinal virtue, not as a trade for maintenance. Wherever 
he was judge, he never forgot that he was also counsel. The 
criminal before him was always sure he stood before his coun- 
try, and, in a sort, a parent of it. The prisoner knew, that, 
though his spirit was broken with guilt, and incapable of lan- 
guage to defend itself, all would be gathered from him which 
could conduce to his safety ; and that his judge would wrest no 
law to destroy him, nor conceal any that could save him." — 
Where flattery could serve no purpose, contemporary eulogy has 
the best title to belief. 

In political matters, as we have already intimated, Sir John 
Holt appears to have borne very small part. Heartily attached 
as he was to the principles on which the government of the 
Revolution was established, and steadily as he maintained the 
supremacy and enforced the injunctions of the laws, he was no 



140 , SIR JOHN HOLT. 

partisan of court measures, no depositary of court intrigues. 
More than one of the " sham plots" which were so rife in the 
early part of William III.'s reign, and which were strongly 
suspected to be of ministerial parentage, were exposed and 
foiled by his humane sagacity. We are somewhat surprised to 
find him in confidential intimacy with Lord Sunderland, and can 
hardly understand what community of feeling could exist be- 
tween the upright and inflexible judge and the unprincipled and 
versatile minister; but Sunderland's consummate talent of win- 
ning golden opinions from all kinds of people with whom he 
came immediately in contact, is well enough known to account 
even for so unnatural an association. In matters of religion, 
Sir John Holt was a warm friend to a liberal toleration, and 
appears to have retained but in a mitigated degree the Whig 
horror of popery which was so generally felt or affected by that 
party. Eminently learned as he was in his profession, beyond 
its circle his knowledge was probably, as we have before hinted, 
not very extensive or profound. *' He was not," says Speaker 
Onslow, " of very enlarged notions ;" — and adds, with a narrow- 
judging criticism by no means uncommon, — ^^ perhaps the better 
judge; whose business it is to keep strictly to the plain and 
known rules of law." 

Of his private life very few memorials survive ; nor are they 
needed for the illustration of his character, which lay entirely 
on the surface, both in its light and shadow. The same fear- 
less and confident spirit which had impelled him to be foremost 
in the feats and follies of boyhood, was visible in every scene 
and action of his life ; restrained, indeed, by an undeviating 
principle of integrity within the strictest bounds of truth and 
honour. His strong and manly intellect, impatient of sophistry 
and anility, combined with this temperament of mind to carry 
him occasionally beyond the limits of that well-governed courtesy 
which is tolerant even of dullness or absurdity ; and the prac- 
titioners in his court, and possibly his brethren on the bench, 
might have reason to regard him as somewhat too self-assured, if 
not disposed at times to be overbearing. He is said to have 
possessed a strong natural turn for humour, in illustration of 
which the following anecdote is recorded. One of the leaders 
of a set of fanatics who were known by the title of the "French 
prophets," having been committed by the Chief Justice's war- 



SIR JOHN HOLT. 141 

rant for some seditious language, one Lacy, another of the fra- 
ternity, called at his house and desired to see him ; and when 
told by the servants that he was unwell, and could see no com- 
pany, bade them acquaint their master that he must see him, for 
he came to him from the Lord God. The Chief Justice there- 
upon ordered Lacy in, and asked him his business. "I come," 
said he, "from the Lord, who has sent me to thee, and would 
have thee grant a nolle prosequi for John Atkins, his servant, 
whom thou hast sent to prison." — " Thou art a false prophet 
and a lying knave," answered the Chief Justice; " for if the 
Lord had sent thee, it would have been to the Attorney-General, 
for he knows it is not in my power to grant a nolle prosequi ; 
but I can grant a warrant to commit thee to bear him com- 
pany ;" which he did forthwith. 

By his wife Anne, the daughter of Sir John Cropley, of 
Clerkenwell, Bart., who survived him till 1712, Sir John Holt 
had no issue. Their conjugal harmony, indeed — as, unluckily, 
has been the case in many a wise man's house — was, it appears, 
but very indifferently tuned. Dr. Arbuthnot, writing to Swift 
an account or his own attendance on the poet Gay, says, "I 
took the same pleasure in saving him, as Radcliffe did in pre- 
serving my Lord Chief Justice Holt's wife, whom he attended 
out of spite to her husband, who wished her dead." The lofty 
and independent spirit which braved the wrath of Lords and 
Commons, was doomed, we suspect, to find itself subjected to a 
more undignified mastery at home. 

The only publication attributed to Lord Holt is that of Chief 
Justice Kelyng's Reports, a collection of points on criminal 
law ruled by that judge, and edited from his MSS. in 1708. 
To these were appended reports of his own judgments in three 
important criminal cases ; Armstrong v. Lisle (on the effect of a 
conviction for manslaughter in barring an appeal of murder), R. 
V. Plummer, and R. v. Mawgridge. But although, like almost 
all of our greatest lawyers, he wanted leisure or inclination for the 
labours of the press, his profession and his country might be 
well content with the legacies that he bequeathed them. They 
had the stores of judicial wisdom gathered from his lips during 
twenty years : — they had what was even more valuable, the in- 
fluence and the example of his virtues. 



LORD COWPER. 



The ancient and wealthy family of Cowper, settled for several 
centuries in the county of Hertford, and having besides consider- 
able possessions in Kent and Sussex, is traced back in lineal 
ascent to the middle of the fifteenth century. William Cowper, 
the representative of the family in the reign of Charles L, was 
created a baronet in 1641, and, adhering inflexibly to the royal 
cause, suffered an imprisonment of some length in Ely House, 
Holborn, together with his eldest son John, who died under 
his confinement. Sir William, however, long outlived his 
troubles, and is recorded by Stow to have resided many years 
at his castle of Hertford, in the practice of the most extensive 
hospitality and charity, until, dying at a great age in 1664, he 
was succeeded in his title and possessions by his grandson, a 
second Sir William, who represented his native town of Hert- 
ford in the two last Parhaments of Charles XL, and was among 
the most active partisans of the Exclusionists ; being one of the 
party who, at the instigation and under the leading of Shaftes- 
bury, presented to the grand jury of Middlesex, in June, 1680, 
during the high fever of the Popish plot, articles for the indict- 
ment of the Duke of York as a papist recusant. By his wife 
Sarah, daughter of Sir William Holled, a London merchant, 
he had two sons, of whom the elder, William, forms the subject 
of the present memoir. 

He was born, according to tradition, at his father's castle at 
Hertford, but at what period has never been precisely ascertain- 
ed ; most probably>in the year 1665 or 1666. The place and 
circumstances of his education are equally unrecorded ;* nor have 

*His name does not appear in the list either of Oxford or Cambridge 
graduates, and he was most probably at neither university. 



LORD COWPER 143 

we been able to collect any particulars of his early years, except 
that they were by no means free from irregularities, to which 
the universal license of that age ascribed merit rather than ap- 
plied censure. While very young, it seems that he contracted 
a liaison with a Miss Elizabeth Culling, the proprietress of 
Hertingfordbury Park, a mile or two distant from Hertford 
town, which continued for several years ; and by her he had 
two children, a son and a daughter.* It was even alleged against 
him that he deceived her by means of an informal marriage ; 
an imputation, which, many years afterwards, in the virulence 
of party warfare, the bitter pen of Swift revived against him, 
taunting him (peer and chancellor as he had then become) with 
the undignified name of " Will Bigamy." He was entered of 
the Middle Temple, March 18, 1681, and on the 26th of May 
1688, (the required term of studentship being then seven years,) 
was called to the bar ; having previously, if we may judge from 
the period at which he became a tenant of chambers (Nov. 
1683), devoted upwards of four years to the worship of Themis ; 
divided, however, we are afraid, with an adoration of more ma- 
terial objects of idolatry. 

Of the protracted hopes, of the capricious and chilling ne- 
glects, by which so many of no less eminence in his profession 
have in the outset been depressed and obscured, he had no ex- 
perience. The influence of his high Wiiig connexions, well 
seconded no doubt by his own promise of ability, and the legal 
acquirements of which he gave speedy proof, appear almost at 
once to have obtained for him employment and reputation in his 
profession, and (what was still more acceptable) to have intro- 
duced him to the favourable notice of the dispensers of prefer- 
ment. As early as the year 1693, when he could not have been 
much past five-and-twenty, and was scarcely yet of five years' 
standing at the bar, he had been appointed Solicitor-General to 
the Queen, and enrolled in the list of king's counsel — a distinc- 
tion rated at that time of day at a far different estimate than now, 

* The daughter, by her brother's death without issue, became mis- 
tress of this property at Hertingfordbury, and afterwards sold it to 
Spencer Cowper, the Chancellor's younger brother, in whose family it 
remained till within the last twenty years. 



144 LORD COWPER. 

when we see it bestowed so profusely, and which then not only 
gave professional rank and promise of promotion, but implied 
the special countenance of the crown ; as may be inferred from 
the fact, that at no period during the reign of William III. or 
Anne, was it enjoyed by more than eight members of the bar 
in the whole. Even two years before this date, we find him 
arguing at great length, and with much display of legal learning, 
a case in the King's Bench on an important and at that time 
novel question of law relating to the transfer of copyhold estate. 
In the parliament which met in November, 1695, he was re- 
turned, jointly with his father, for the town of Hertford ; and it 
is manifest that he was already master of one quality essential 
to success even more in parliament, if possible, than at the bar — 
namely, a very sufficient confidence in his own powers ; for we 
are informed, that on the very day he took his seat he found 
occasion three several times to address the house, and, speaking 
with much applause, already gave promise of the distinguished 
parliamentary reputation he subsequently attained. 

In the following year (1696) his name first occurs in the State 
Trials, as one of the crown counsel against Sir John Friend, Sir 
William Parkyns, and the other parties subsequently brought to 
trial for their participation in the Assassination and Invasion plot. 
Parky ns's case is remarkable as being the last that was tried 
under the old law, which forbad the appearance of counsel on 
behalf of prisoners accused of treason. The statute allowing a 
defence by counsel (7 W. & M. c. 3) had already passed, and 
was to come into operation on the 25th of March. The trial 
was fixed for the 24th ; Parkyns, on his arraignment, pressed 
earnestly for its postponement, so as to bring him within the 
benefit of the new law ; a request which, reasonable as it would 
now be deemed, met with a peremptory refusal from the court. 
The evidence for the crown was summed up by Cowper, who 
certainly, according to the report in the State Trials, easily out- 
did his colleagues in oratory at least, if not in law. The case 
next tried, that against Rookwood, Lowick, and Cranborne, fell 
within the new act of parliament. Sir Bartholomew Shower 
accordingly appeared as counsel for the prisoners ; and the 
numberless objections, both of form and substance, which he 
started, and the hours that were wasted in debating, refuting, 



LORD COWPER. 145 

and re-urging them, with what would now be deemed an utter 
disregard of any thing like regularity of procedure, must have 
gone far to surfeit the judges with the alteration of the law. Of 
the guilt of all these parties, or of the propriety of the convic- 
tions in their several cases, the reports of the trials leave little 
or no room to doubt. But a very different and much more ques- 
tionable character attaches to the proceedings which were insti- 
tuted about the same time in parliament against Sir John Fenwick, 
for his accession to the same treason. The bill of attainder was 
avowedly resorted to for the purpose of supplying the place of a 
trial before the ordinary tribunals, in which, from the absence of 
the necessary proof by two witnesses, a legal conviction could 
not have been obtained — the bench being now somewhat differ- 
ently filled than upon the trials of Russell and of Sidney. Cowper, 
who inherited all his father's attachment to whig principles, and 
whose personal prospects and interests, moreover, pointed the 
same road with his political predilections, was among the most 
active and influential supporters of the bill. An important point 
debated in the first instance was, whether the preamble of the 
bill, which stated only that Sir John had been indicted of high 
treason on the oaths of two witnesses (one of whom had since 
absconded), and had obtained from time to time a postponement 
of his trial under the pretext of making a full discovery of the 
conspiracy — contained any sufficient allegation upon which the 
house might proceed to hear evidence tending to prove him 
actually guilty of high treason. Upon this, as well as upon the 
more interesting question involved in the whole proceeding, how 
far the defect of legal evidence could or ought to be supplied by 
the extraordinary operation of a parliamentary attainder, we find 
Cowper ably but sophistically combating the objections urged 
against the bill ; which however, as is well known, the govern- 
ment succeeded in finally carrying only by a very inconsiderable 
majority. 

The part he took on this occasion could not fail to confirm 
and secure him in the enjoyment of court favour; and he ap- 
pears to have been employed in all the crown prosecutions of 
any importance, of which that reign was so prolific. Of these 
we may mention the trials of Lords Warwick and Mohun for 
the murder of Mr. Coote, in 1699; in the latter of which he 



146 LORD COWPER. 

was paid a rather unusual compliment, at the expense of the 
Solicitor-General, Sir John Ilawles. Mr. Solicitor had summed 
up the evidence on Lord Warwick's trial the day before in so 
mumbling and inaudible a tone of voice, as to occasion consider- 
able trouble to the peers and interruption to the proceedings. 
When he rose to perform the same office on the present occa- 
sion, the same complaint was renewed; whereupon "several 
lords did move that one that had a better voice might sum it up, 
and particularly Mr. Cow per [he was the junior in the case] ; 
but it being usually the part of the Solicitor-General, and he only 
having prepared himself, he was ordered to go on ; but for the 
better hearing of him, several of the lords towards the upper end 
of the house removed from their seats down, as they did the day 
before, to sit upon the wool-packs." Their lordships might 
reasonably enough be willing to hear any of his brethren in place 
of the worthy Solicitor, who, considerable as were his qualifica- 
tions as a lawyer, belonged undoubtedly — independently of his 
lack of lungs — to the dullest and most prosaic school of matter- 
of-fact speech-makers. 

In this same year it was that Cowper had to appear in a 
criminal court in a much less agreeable character than he was 
wont to fill there — as a witness, namely, on behalf of his brother 
(who was also a barrister in some repute) on a charge of murder. 
The circumstances of the case were altogether so curious, that a 
summary of them may interest such of our readers as have not 
become familiar with them by the report in the State Trials, or 
from the works of writers on medical jurisprudence. A young 
Quaker lady of the name of Stout, residing with her mother at 
Hertford, had, it seems, conceived a violent passion for the young 
barrister, and resorted to all possible means of communicating 
and contriving meetings with him, married though he was ; 
going so far as to repair clandestinely to his chambers in the 
Temple, on which occasion he virtuously avoided a meeting with 
her by pretending business out of town, leaving his brother to 
represent him, and, we suppose, to lecture the lady upon her 
imprudence. Both brothers went the Home Circuit, and were 
in the habit, "out of good husbandry," of jointly occupying the 
same lodgings at their native town of Hertford. On the spring 
circuit of 1699, William being detained in town by parliamentary 



LORD COWPER. 147 

business, of which, as it seems, Miss Stout was by some means 
informed, Spencer Cowper received from her a pressing invita- 
tion to lodge during the continuance of the assizes at her mother's 
house. The same "good husbandry" which induced him to 
share his brother's lodgings, disposed him also, maugre the peril 
to which his virtue might again be subjected, to comply with an 
invitation which was to give him a lodging for nothing ; but on 
"arriving in Hertford, he found that his brother's letter which was 
to have communicated this change of purpose had not arrived, 
and that preparation had been made as usual to receive him at 
their lodgings. He went, however, to Mrs. Stout's to dinner, 
and there spent the greater part of the evening. About eleven 
at night, when he was preparing to go home, he was pressed by 
the young lady to remain and occupy abed there. He appeared 
to accede, and accordingly the maid-servant (this was the account 
given by her on the trial) was sent up stairs to warm his bed, 
leaving her young mistress and him alone together. While thus 
engaged, she heard the outer door of the house shut; and on 
her return down stairs after about a quarter of an hour, both of 
them were gone. The mother and the maid, after waiting some 
time in vain for the daughter's return, betook themselves to bed ; 
and the former, more solicitous, as it would seem, about her 
daughter's reputation than her virtue, and dreading the censures 
of the quaker community, refused to allow any search to be 
instituted for her during the night. But early in the morning 
her dead body was found, floating as it was alleged, on a pond 
about a mile out of the town. A coroner's inquest came, with- 
out much inquiry, to the conclusion that she died by suicide ; 
but the mother was not so satisfied, and preferred an indictment 
for her murder against Mr. Cowper and three other gentlemen, 
who also were attending the assizes on the day of her disappear- 
ance, and against whom the only ground of charge arose out of 
some mysterious expressions which were sworn to have been 
interchanged between them on that evening, relative to the young 
lady, and which might be construed to import a knowledge that 
some design against her was in progress. A long and minute 
report of the proceedings is to be found in the thirteenth volume 
of the State Trials. Independently of the strange circumstances 
of the case itself, and the interest it excited from the station and 



148 LORD COWPER. 

character of the accused parties, it was moreover remarkable for 
several important questions of medical science involved in it, and 
upon which a great deal of evidence (conflicting of course) was 
given by eminent medical practitioners :* — viz. whether upon 
death by drowning, without violence or resistance, water would 
of necessity be received into the lungs or stomach ; and whether 
the body of a person who had so committed suicide would, so 
soon at least after death, float upon the surface. On the part of 
the prisoners, besides the medical evidence adduced, several 
witnesses, among them AVilliam Cowper and his wife, deposed 
to the young lady's frequent fits of melancholy, and her repeated 
expressions of her wish to be rid of life, and prognostications of 
her approaching death ; and it was proved also that Mr. Cowper 
had returned to his lodgings so shortly after eleven o'clock on 
the night in question, as to render it next to impossible that he 
could have been at or near the pond in which the body was 
found, after leaving the house of Mrs. Stout. All the accused 
were ultimately acquitted ; but the mother was still unappeased, 
and procured an appeal of murder to be lodged against the ver- 
dict, which in the end was got rid of by an understanding between 
the Cowper family and the appellant (the heir-at-law and a cou- 
sin apparently of the deceased), who, by the connivance of the 
Sheriff of Hertfordshire, got back the writ of appeal out of his 
office ; a misfeasance for which the latter was visited with a 
considerable fine. 

The narrative of this transaction has led us somewhat astray 
from the proper subject of our notice, to whom we now return. 

* Doctors Sloane, Garth, and Wollaston, and William Cooper, the 
celebrated anatomist, were amongst those examined for the prisoners, 
whose joint defence was conducted by Spencer Cowper in person. One 
of the learned doctors (Dr. Crell) exhibited an amusing sample of the 
pedantry which is still heard so often from medical witnesses. "Now, 
my lord," says he, "I will give you the opinion cf several ancient 
authors." "Pray, sir," interrupts the judge, Mr. Baron Hatsell, dread- 
ing the coming dissertation, " tell us 3'our own observations." "My 
lord," rejoins the doctor, " I humbly conceive that in such a difficult 
case as this we ought to have a great deference for the reports and 
opinions of learned men ; neither do I see why I should not quote the 
fathers of my profession in this case, as well as you gentlemen of the 
long robe quote Coke upon. Littleton in others." 



LORD COWPER. l49 

On the occasion of Lord Somers's impeachment in 1701, his 
defence was warmly taken up in the House of Commons by 
Cowper, with more zeal however, as it proved, than discretion, 
since a long debate was thereby generated, in the course of which 
much of the impression made by Somers's manly and simple 
justification of his conduct earlier in the morning was worn off, 
and the impeachment, which would probably have been nega- 
tived had a division been taken upon the question at once, was 
carried by a very small majority. Its fate in the Lords js well 
known. Early in the following year, the accession of Queen 
Anne filled the Tories with joyful expectation, and threatened 
the entire extinction of Whig influence and favour. The cau- 
tious policy, however, of Godolphin and Marlborough, hesitated 
to exercise against their opponents the extreme measures which 
the more intemperate of their party would have adopted, and 
many of the Whigs were retained in the offices they had enjoyed 
under the former reign. Among those who were thus spared 
was Cowper ; being one of the only two king's counsel out of 
six to whom fresh patents were granted. He had now acquired 
a high reputation as a parliamentary speaker, and took a leading 
part in most of the important questions debated in the House 
of Commons. At the general election in 1700-1, he lost his 
seat for Hertford, where his father's interest had for some time 
been warmly contested, but found refuge in the little borough of 
Beeralston (now consigned to everlasting rest), for which he was 
returned in the two following parliaments in conjunction with 
]Mr. King, afterwards his successor in the occupation of the 
woolsack. The Parliamentary History has however preserved 
no record of his speeches, until we arrive at the debates on the 
celebrated case of Ashby and White, in 1704.* On that memo- 
rable occasion, he distinguished himself by an able and unquali- 
fied opposition to the unconstitutional jurisdiction claimed by the 
House of Commons, and maintained with equal talent and spirit 
the legal right of an elector to claim damages at the hands of the 
returning officer for corruptly or improperly refusing to receive 
his vote. He addressed himself particularly to the refutation of 

* See ante, pp. 126 et seq., for a summary of the proceedings of 
both Houses in this case. 



150 LORD COWPER. 

the arguments of Harley, then the Speaker and Secretary of 
State, the sum of which was, that the determination of all mat- 
ters relating to elections, where no statute had expressly directed 
otherwise, belonged by law and precedent exclusively to the 
House of commons. Admitting that the law and custom of Par- 
liament vested in the House the sole right to adjudicate upon 
election questions, for the purpose of determining who were 
rightly elected, and that incident to that end it had the power 
also o£, inquiring into the rights of the electors, he yet maintained 
that the injured subject, deprived unlawfully of the exercise of 
his unquestionable right, was entitled to resort to the ordinary 
tribunals for redress of that wrong ; a proceeding which, as it in 
no degree brought into question the propriety of the return, was 
entirely independent of, and trenched not upon, the lawful judi- 
cature of the House of Commons. The scandalous and bare- 
faced corruption with which the jurisdiction of the House was 
exercised, at the very period when they were so strenuously 
and intemperately contending for an almost unlimited extension 
of that jurisdiction, may be seen by a reference to Burnet, or any 
other historian of the time. 

The difficulties and distractions of the Tory ministry, the 
lukewarraness of Godolphin's party spirit, and the influence and 
importunities of the Duchess of Marlborough, always a ran- 
corous enemy of the Tories, opened the way to a fuller participa- 
tion in the good things of office by the AVhigs, It was only by 
concert with the latter party that the union with Scotland, a 
measure which the circumstances of the succession had rendered 
indispensable, could be expected to be carried. They exulted 
in the critical predicament into which the cabinet was brought, 
and Lord Wharton coarsely expressed the triumph of his party, 
by declaring that " they held the head'of the Lord Treasurer in 
a bag." One of the changes most pressingly urged upon the 
queen by her arrogant favourite, and struggled for during nearly 
two years with a pertinacity which no repulse could daunt, was 
the removal of Sir Nathan Wright from his office of Lord 
Keeper, and the elevation of Cowper, who had now become one 
of the most powerful supports of the Whig party, in his room. 
Wright was a violent Tory and high churchman, odious for his 
covetousness, and suspected of corruption in the administration 



LORD COWPER. 151 

of his office and the disposal of church patronage. The Queen 
nevertheless long and stoutly resisted the change, but was com- 
pelled at length to yield, which she did with undisguised ill-will ; 
and on the 11th of October, 1705, Sir Nathan being required to 
deliver up the great seal, it was transferred to the hands of Cow- 
per, with the title of Lord Keeper, and he was sworn of the 
Privy Council. 

His elevation was probably in truth not much more palatable 
to the prime minister than to his mistress, although the former 
was compelled to promote it with a degree of apparent zeal 
which could have been prompted only by the multiplied diffi- 
culties of his situation. The day after the appointment was com- 
pleted, in reply to Lord Dartmouth, who was telling him of the 
high expectation the public entertained of the new Lord Keeper, 
Godolphin coldly answered, " that he had the advantage to suc- 
ceed a man that nobody esteemed ; but the world would soon have 
other sentiments, for his chief perfection lay in being a good 
party man." It was a measure, however, which had a great 
effect in procuring for the government the support of the Whigs 
as a party ; and the manner in which the Lord Keeper exercised 
his office speedily recommended him to all parties. One of his 
first measures of reform — " a thing of a great example," Burnet 
calls it — was to put a stop to the custom which had prevailed 
with his predecessors, of receiving from the officers and bar of 
the Court of Chancery large presents in money, under the title 
of new-year's gifts ; and which had come to be so considerable 
as to amount of late years to more than ^61500 ; a practice which, 
if it was not bribery, " he thought came too near it, and looked 
too much like it. This," says the same historian, "contributed 
not a little to the raising his character ; he managed the Court of 
Chancery with impartial justice and great despatch ; and was 
very useful to the House of Lords in the promoting of business." 
These merits, of impartiality and despatch in the exercise of his 
judicial duties, are accorded to him by all contemporary writers. 
The Duke of AVharton, writing after his death, bears testimony 
to them in the following glowing terms of panegyric: — " The 
Lord Cowper came not to the seals without a great deal of pre- 
judice from the Tory party in general, among whom, I believe, 
there was not one but maligned him. But how long did this 



152 LORD COWPER. 

scene continue ? He had scarcely presided in that liigh station 
one year, before the scales became even with the universal ap- 
plause and approbation of both parties. All signs of prejudice 
were removed, and Tories and Whigs joined in admiration of 
his most excellent qualities. There was not the least mark of 
party rage, rashness, rigour, or impatience, to be seen or traced 
throughout all his conduct in this critical branch of his high 
office ; for which he showed such a masterly genius and uncom- 
mon abilities, that made easy to him the great task of dispensing 
justice; which, like the sun, he diffused with equal lustre on all, 
without regard to quality or distinction." — " The skilful plead- 
er," says Steele in his dedication to him of the third volume of 
the Tatler, " is now for ever changed into the just judge ; which 
latter character your lordship exerts with so prevailing an impar- 
tiality, that you win the approbation even of those who dissent 
from you, and you always obtain favour, because you are never 
moved by it." These testimonies, it is true, come from his 
political friends ; but they are not opposed by any contemporary 
censure, as to these points of his character at least, from his ad- 
versaries, whether political or personal. Even Swift, when 
writing for posterity, and divesting himself, we may presume, 
of some portion of his party prejudices, although he depreciates 
him as a scholar and a statesman, ventures no imputation upon 
his conduct as a judge. " The Lord Cowper (he writes in his 
History of the Four Last Years of the Queen) was considerable 
in the station of a practising lawyer ; but as he was raised to be 
a chancellor and a peer without passing through any of those 
intermedaite steps, which in late times had been the constant 
practice, and little skilled in the nature of government or the 
true interest of princes, farther than the municipal or common 
law of England, his abilities as to foreign affairs did not equally 
appear in the council* As to his other accomplish- 

* A circumstance noted in Lord Cowper's Diary may induce a belief 
that Swift has done some injustice to his capacity for the administration 
of foreign affairs. He alone of all the cabinet, it seems, had sagacity 
enough to distrust the concurrence of Lewis XIV. in the famous Bar- 
rier Treaty of 1710, and for expressing his doubts incurred the sharp 
rebuke of Godolphin. " Lord Treasurer, Lord President Somers, and 
all other Lords, did ever seem confident of a peace. My own distrust 



LORD COWPER. 153 

ments, he was what we usually call a 'piece of a scholar, and a 
good logical reasoner ; if this were not too often allayed by a 
fallacious way of managing an argument, which made him apt to 
deceive the unwary, and sometimes to deceive himself." 

The personal exertions of the judge, however, (even if this 
belauded despatch were in itself — as we in these days may have 
had good cause to doubt — a certain good, at all events unless it 
be the produce of an understanding profoundly stored with the 
knowledge of the principles, and habitually versed in the prac- 
tice, of equitable jurisprudence,) could do little towards eradicat- 
ing a mass of grievances which had been extending in depth and 
rancour for above a century. The complaints against the delay, 
vexatiousness, and expense of legal proceedings, especially in 
Chancery, which had been increasing ever since the time of 
Bacon, had now become so loud and general as to force them- 
selves upon the serious attention of the government and the 
legislature. In the session of 1705-6, Lord Somers, with the 
full concurrence of Cowper and the judges, introduced into the 
House of Peers the "Act for the Amendment of the Law and the 
better Advancement of Justice," which still stands upon the 
Statute-book (4 Anne, c. 16). Burnet informs us that a much 
more extensive and effectual reform was provided for by the bill 
as it came down from the Lords ; but as it went through the 
other house, "it was visible that the interest of under-officers, 
clerks, and attornies, whose gains w^ere to be lessened by this 
bill, was more considered than the interest of the nation itself; 
several clauses, how^ever beneficial to the public, which touched 
on their profit, were left out by the Commons." The act, how- 
ever, as it finally passed, wrought a substantial amendment of 

was so remarkable, that I was once perfectly chid by the Lord Trea- 
surer, never so much in any other case, for saying such orders would be 
proper if the French king signed the preliminary treaty. He resented 
my making a question of it, and said there could be no doubt of his 
signing. For my part, nothing but seeing so great men believe it 
could ever incline me to think France reduced so low as to accept such 
conditions." The Lord Keeper, it would appear, had pretty often the 
misfortune to express opposite opinions to my Lord Treasurer's ; being, 
perhaps, disposed to bolder measures than Godolphin's timorous and 
temporizing spirit durst adventure on. 

11 



154 LORD COWPER. 

ihc delay and cost of law proceedings. In tlie next year a 
second bill, comprehending most if not all of the rejected clauses 
of the former, (as we learn from a contemporary pamphlet on the 
subject, for we find no trace of it in the Parliamentary History*), 
was presented to Parliament, but with no better success. We 
may reasonably believe that none of these reforms were proposed 
without the sanction of the Lord Keeper. He shares also with 
Somers the praise of having discouraged, as much as his prede- 
cessor had promoted, the jobbing in private bills, from which 
the speakers and clerks of both houses had been in the habit of 
deriving inordinate profits. Immediately on his acceptance of 
the seals, he had issued a strict injunction to all the ofllicers of 
his court to discharge their duties without receiving any extra 
fees whatever ; an order which, under the venerable practice 
which time and right honourable example had sanctified in their 
eyes, must have rendered him as little popular with the race of 
registrars and six clerks as the noble reformer who is now threat- 
ening to lay so unmerciful a clutch upon the profits of their 
offices.! 

The new Lord Keeper appears very speedily to have dis- 
armed the Queen's dislike, if not conciliated her favour. The 
speech she delivered from the throne on the opening of the new 
parliament, within a fortnight after his appointment, is said to 

* " Reasons humbly offered to both Houses of Parliament to pass a 
Bill for preventing delay and expense in Suits at Law and Equity:" 
printed in 1707. The alterations proposed comprehended several 
amendments in pleading, practice, and process, which have since been 
carried into effect, and some whicli yet remain to be — e.g. the abolition 
of the payment of copy money in chancery, and of the heavy fees of the 
registrars on the engrossment of bills in equity, &c. &c. No blame 
whatever is imputed to the then judges. 

f Written in 1833. — On the trial of Lord Macclesfield, in 1725, when 
that notorious peculator justified his extortions by the usage of his pre- 
decessors, it was proved that in one instance, in 1716, a sum of 500Z 
had been paid for the use of the great seal by a party receiving the 
appointment of Master in Chancery; but it appeared also that the mo- 
ney was paid out of his own funds, not from the suitors' monies, as in 
Lord Macclesfield's cases ; and moreover that Lord Cowper had in 
several instances expressly refused the receipt of presents on the ap- 
pointment of persons to other offices. ; 



LORD COWPER. 155 

have been of his composition. It is considerably longer and in 
a less formal style than such addresses were then or now are 
wont to be ; but we ©annot say that it exhibits much more of the 
graces of eloquence. The ascendancy of Whiggism in the cabi- 
net was manifested by the terms in which the Tory cry of " the 
church is in danger" was denounced as the contrivance of mali- 
cious and disaffected hostility to the state. The accession of the 
Whigs to power appeared to have contributed much to the sta- 
bility of the administration ; the elections were carried in favour 
of their party by a great majority, and the temper of the new 
House of Commons seemed accommodating and liberal. In the 
following spring, the treaty of union with Scotland was formally 
opened, and Cowper was named one of the Commissioners for 
England, and took the leading part in the management of the 
negotiations. During their progress, (November 9, 1706,) he 
was advanced to the dignity of the peerage, by the title of Baron 
Cowper, of Wingham, in the county of Kent ; and in the follow- 
ing May, the Queen further manifested her favourable disposition 
towards him by investing him in council with the title of Lord 
Chancellor. He had already, by his father's death about a year 
before, succeeded to the baronetcy. 

The trimming policy with which the Lord Treasurer Godol- 
phin continued to temporize between the two great parties that 
divided the state, and to endeavour at the same time to gratify, 
as far as he durst, the known inclination of the Queen to Tory- 
ism, had led to the introduction, some time previously to the 
period of which we are now speaking, of Harley and St. John 
into the ministry. Cowper, who knew the craft and insincerity 
of Harley's character, had foreseen that this ill-considered part- 
nership would be the parent of intrigue, dissension, and probable 
overthrow. He describes in an amusing strain, in a diary he 
kept at this period, the incidents of a dinner given by Harley 
on the occasion, at which all the Whig leaders were present. 
"On the departure of Lord Godolphin, Harley took a glass, and 
drank to love and friendship, and everlasting union ; and wished 
he had more Tokay to drink it in. We had drank two bottles, 
good, hut thick. I replied, his white Lisbon was best to drink 
it in, being very clear. I suppose he apprehended it (as most 
of the company did) to relate to that humour of his, which was 



156 LORD COWPER. 

never to deal clearly or openly, but always with reserve, if not 
dissimulation, or rather simulation; and to love tricks when not 
necessary, but from an inward satisfaction in applauding his own 
cunning." From this ill-omened junction the seeds of distrust 
and decline speedily took root. The Duchess of Marlborough's 
influence, too, had faded before that of Mrs. Masham, a less im- 
perious and more artful favourite, whose personal interests and 
party connexions concurred in prompting her to flatter, instead 
of thwarting the secret predilections of her mistress, and who 
omitted no opportunity of multiplying and exaggerating causes 
of dislike and division betwixt her and her ministers. Godol- 
phin, thus threatened on the one side by back-stair influence and 
covert hostility, was harassed on the other by the unseasonable 
ambition, or rather avarice, of Marlborough, who was only pre- 
vented from obtaining the unprincipled demand he preferred, of 
being invested with a commission as captain-general for life, by 
the determination and independence of Cowper, whose advice 
the Queen sought in the matter, and who not only endeavoured 
by the strongest representations to turn the duke from his extra- 
vagant and dangerous purpose, but when they were unavailing, 
put an end to the scheme by unreservedly declaring that if such 
a commission were drawn, he would never afiix the great seal 
to it. That this resolution was dictated by an honourable spirit 
of resistance to an unconstitutional and insolent design, and was 
notprompted'by any feeling of personal hostihty to Marlborough, 
can scarcely be doubted from the fact, that when, on Sunderland's 
dismissal from his office in 1709, the duke threatened to throw 
up his command of the army, Cowper was one who, in con- 
junction with the Dukes of Newcastle and Devonshire, wrote to 
dissuade him in the most earnest terms from doing so. It was 
about this time also, if we may credit the statements and autho- 
rities of Macpherson, that Marlborough, in concert with Prince 
Eugene of Savoy, then in England, allowed himself to be 
drawn into the discussion at least of schemes of the most violent 
and unqualified treason, for the consolidation of his own and his 
party's power ; one of them comprehending a plan for the occu- 
pation of the metropolis, and the seizure of the Queen's person, 
by an armed force under Marlborough's command, and the com- 
pelling her to dissolve the parliament, and to punish the parties 



LORD COWPER. 157 

(that is, Harley and his friends) suspected of the secret corre- 
spondence with France which had just then been discovered. 
This scheme is said to have been communicated to the Lords 
Cowper, Somers, and Halifax ; by whom, however, even ac- 
cording to the suspicious authorities quoted by Macpherson, it 
was at once and absolutely rejected ; and they expressed their 
determination to proceed in the investigation according to the 
legal and ordinary course. The consequence, however, of the 
disclosures relative to the French correspondence was the re- 
moval of Harley and St. John from the ministry. But this con- 
tributed little towards restoring its consistence or vitality: they 
were indulged with no less opportunities than before of prac- 
tising upon the resentments and predilections of the queen ; and 
the dislike with which she viewed the party by whom they had 
been dispossessed was still deeper, and more openly exhibited. 
The Chancellor was probably the only one of the cabinet whom 
she continued to regard with anything like favour. It would 
seem from what shortly followed as if she, as well as the Tory 
leaders, considered the sincerity of his attachment to his party 
more questionable than it proved ; and the earnest and repeated 
attempts which, as we shall see presently, were made to induce 
him to desert itj prove at least the high opinion they had of his 
ability and value as a political ally. 

In the following year (1709) the proceedings on the absurd 
impeachment of Sacheverell, and the universal ferment, and hue 
and cry of " Church in danger," which were successfully excited 
throughout the kingdom, came most opportunely to the aid of 
the Tories in completing the discomfiture of their adversaries. 
The Lord Chancellor of course presided on the trial, which 
began in Westminster Hall 27th February, 1710, and was pro- 
tracted for three weeks ; during which the fanatical and turbulent 
churchman was attended to and fro by the tumultuous idolatry of 
a bigoted multitude, stuffed with a zealously propagated belief 
of a whig conspiracy to overturn the church, and sufficiently dis- 
posed before to disaffection and violence by the discontent 
arising from a general scarcity of provisions. Harley's plans 
were now fully enough matured to enable him to assume the 
offensive, and the entire disruption of the ministry was soon 
effected. The first blow was struck by the dismissal of Sun- 



158 LORD COWPER. 

derland from his ofllce of secretary of state ; in two month's 
afterwards Godolphin was as unceremoniously removed from 
the Treasury ; and in September " the queen came to council 
(says Burnet) and called for a proclamation dissolving the par- 
liament, which llarcourt (now made attorney-general in the 
room of Montague) had prepared: when it was read, the Lord 
Chancellor offered to speak, but the queen would admit of no 
debate, and ordered the writs for a new parliament to be pre- 
pared." Almost all the remaining members of the cabinet were 
displaced or resigned their offices the same day. Harley, who 
had not originally contemplated so entire a sweep as this, but 
only the removal of Godolphin and his immediate dependents, 
had already in the most humble and supplicating terms solicited 
Cowper to retain his office, communicating to him as a prece- 
dent for the treachery, Marlborough's secret correspondence 
with the Jacobite Shrewsbury; but his overtures had been con- 
temptuously rejected. The Chancellor, instantly on the break- 
ing up of the council, obtained an audience of the Queen, for the 
purpose of delivering up the seals. She expressed surprise at 
his determination,* and combated it with the greatest earnest- 
ness ; and thrice returned the seals into his hands after he had 
laid them down ; and when he persisted in refusing them, abso- 
lutely commanded him to take them, adding, "I beg it as a 
favour, if I may use that expression." Cowper could not refuse 
(such is his own account of the interview in his diary) to obey 
this command, but after a short pause said he would not carry 

* Speaker Onslow, in one of his notes to Burnet's History, asserts, 
on the authority of Sir Joseph Jekyll, that Harley had made overtures 
to Somers, Halifax, and Cowper in conjunction, who were disposed to 
entertain them, had it not been for the indignant refusal of Lord Whar- 
ton to serve with Harley, whom he abused in the most contemptuous 
terms ; and ascribes the expectation entertained by the Tories and the 
queen that Cowper would come into their views, to the circumstance 
of his retaining the seals so long after Godolphin's dismissal, and con- 
senting to the Tory Harcourt's appointment as attornej^-general. Mac- 
pherson, who takes more than one occasion of depreciating Cowper, 
and calls him elsewhere "a man of heavy and confused parts," says, 
"he derived this favour (of being retained in office), perhaps, on ac- 
count of his insignificance :" — an hypothesis not very easily recon- 
cilable with the pains that were taken to gain him. 



LORD COWPER. 159 

them out of the palace except on the promise that the surrender 
of them would be accepted on the morrow. " The arguments 
on my side," he says, " and the professions and repeated impor- 
tunities of her majesty, drew this audience into the length of 
three quarters of an hour." The next day, Harley and Mrs. 
Masham having been consulted in the mean time, his resigna- 
tion was accepted without any further difficulty, and the great 
seal was transferred, after a short interval, to Sir Simon Har- 
court. 

The resolute and honourable consistency which Lord Cowper 
maintained on this occasion gave him new weight and credit 
with his party, of which he might now be considered perhaps 
Ihe most active and efficient leader. Never, probably, was there 
a period at which the conflict of parties raged more fiercely, or 
was conducted with more combination and system, than that of 
which we are now treating ; and the aid of the press was largely 
invoked to give point and Intensity to the mutual attack. The 
" folio of four pages," circulating to the remotest corners of the 
realm, with almost the speed of light, the detait of senatorial 
schemes and squabbles, the tale of public rumour and private 
scandal, as yet was not; still less were the breakfast-tables of 
that generation overspread with the huge sheet of four feet 
square, that now issues daily from the recesses of Shoe Lane 
and Blackfriars : — but" lighter and more pointed missiles were 
supplied by the press in aid of the party war. Short and pun- 
gent political papers, — the Examiner, the Medley, the Free- 
holder, the Englishman, &c. &c. — employed the daily pens of 
no mean masters of the game. On the Tory side. Swift, Atter- 
bury, Arbuthnot, Prior, Defoe,* — in the Whig interest, Addison, 
Steele, Maynwaring, and others, exercised their powers of in- 
vective, sarcasm, persuasion, apology, or flattery, to maintain 
the predominance of their own parly, or assault that of their 
adversaries. The chiefs of the several factions themselves 
descended occasionally into this arena ; and Bolingbroke (then 
Secretary St. John) having indited a "Letter to the Examiner," 
of which paper Swift about that time assumed the conduct, in 
which he called upon him to pass in review, and hold up to 

* Defoe began as a Whig, but found it convenient to modify his 
principles soon after Harley's accession to power. 



IGO LORD COWPER. 

public censure, the foreign and domestic policy of llie expelled 
ministry, and the tyranny and insolence of the Duchess of Marl- 
borough and her creatures — Lord Cowper replied by a counter 
epistle addressed (anonymously at the time) to Isaac Bickerstafl' 
(Steele, who conducted the Tatler under that disguise), in which 
he entered into a laboured defence of the policy of the late go- 
vernment, and retorted upon his opponent the machinations and 
political sins of the Tories ; and in turn invoked the pen of his 
correspondent to portray the triumphs of the war, and the glories 
wherewith the nation had been blessed under a Whig ministry. 
"Describe," says he (we quote a portion of the letter, because 
it presents almost the only specimen extant of the written style 
of its author, and that from a composition wrought evidendy 
with some pains) — 

■*' Describe the vast extent of the kingdoms and provinces 
undertaken to be wrested out of the enemy's hands : pass 
leisurely from the battle of Blenheim to that of Saragossa, and 
all the way observe, that Heaven, to prevent our undervaluing 
the glorious cause which the allies contend for, has suffered 
no acquisition to be made but by true military conduct and forti- 
tude, and pern:vtted disgrace to fall on those only of their com- 
manders who have acted rashly or carelessly, and without 
counsel or discretion. Place in the clearest light those generals, 
who, faithful to their sovereign, just to themselves, pursuing 
honour with an honest affection, not irregular lust, have by the 
sword in open day recovered almost all the Spanish dominions 
in Europe ; — 

Non cauponantes bellum, sed belligerantes. 

Describe them negotiating with caution and probity in the 
cabinet equal to their generosity and vigilance in the field; 
and give them the same superiority in one as in the other over 
the vain pretenders to mastery in both. Then set to view in 
all magnificence, the head and soul of the alliance, the pious 
royal Anne ; and next her those ministers and patriots who 
have given so many illustrious and immortal proofs of their 
duty and zeal for her person, and love to their native country. 
You cannot want shade sufficient for all this bright scene of 
beauteous images. The black hypocrisy and prevarication, the 



LORD COWPER. 161 

servile prostitution of all English principles, and the malevolent 
ambition of a perverse and arrogant faction, will serve to make 
the strongest contrast. And from the whole piece the world 
shall judge and own, in spite of senseless flattery, that the per- 
sonal glory of monarchs is built upon the ability and integrity 
which their generals, ministers, and councils, show in discharg- 
ing their respective trusts, with just regard as well to the laws 
as to the prince." 

Both these compositions obtained considerable celebrity at the 
time ; St. John's, however, has much the advantage in ease, 
spirit, and poignancy. They are printed in the thirteenth 
volume of the Somers' Tracts. 

It was at this period that the unscrupulous pen of Swift, 
pouring out upon the party he had just deserted the double 
bitterness of a renegade's hostility, assailed Lord Cowper with 
the old story of his connexion with Miss Culling, to which we 
before alluded ; choosing for his purpose to represent it as an 
actual marriage, and ingeniously combining with the imputation 
upon his lordship's morality a no less malicious insinuation 
against his orthodoxy : — " This gentleman,"* says he, (in the 
22d number of the Examiner, pubhshed some three months 
after the change of ministry,) " knowing that marriage fees were 
a considerable perquisite to the clergy, found out a way of im- 
proving them cent, per cent, for the benefit of the Church. His 
invention was to marry a second wife while the first was alive, 
convincing her of the lawfulness by such arguments as he did not 
doubt would make others follow the same example. These he 
had drawn up in writing, with intention to publish for the gene- 
ral good ; and it is hoped he may now have leisure to finish 
them." — Again, in the 26th number, after eulogizing the ability 
and eloquence of the new Lord Keeper Harcourt, he contrasts 
him with his predecessor in the following cutting terms: — " It 

* " Will Bigamy," by which name he several times designates Cow- 
per ; as Godolphin is styled "Mr. Oldfox," and Wharton held up to 
execration under the name of Verres. In another place, Lord Cowper 
is also most probably pointed at under the character of Cinna. Vol- 
taire mentions, in the Encyclopedie, a tract in defence of polygamy, 
which he states to have been attributed, most probably in malice or 
irony, to Lord Cowper's pen. 



162 LORD COWPER. 

must be granted that he (Ilarcourt) is wholly ignorant in the 
speculative as well as practical part of polygamy ; he knows not 
how to metamorphose a sober man into a lunatic ;* he is no 
freethinker in religion, nor has courage to be patron of an athe- 
istical work, \vhile he is guardian of tiie queen's conscience." — 
The last paragraph refers, we presume, to the Chancellor's 
having accepted the dedication of some of Toland or Tindal's 
heterodox publications ; there is reason, indeed, to surmise that 
his opinions on religious subjects, or at least his practice, par- 
took of the license so fashionable in the age and with the party 
in which he was brought up. 

The Tories were not satisfied with the victory they had 
achieved in driving their adversaries from the helm, but sought 
to push their triumph into vengeance. They began by an in- 
quiry into the conduct of the war in Spain, and after long ex- 
aminations of Lord Peterborough and the other generals who 
had held commands in it, a vote of censjjre was proposed on 
the late ministry, for having embarked in offensive hostilities 
under circumstances and with means which rendered a defen- 
sive policy alone justifiable. Lord Cowper took a prominent 
part in the defence of his colleagues and himself, and his name 
is found to all the protests against the criminatory resolutions of 
the Lords. Harley, now become Earl of Oxford and Lord 
Treasurer, bent all his efforts towards the establishment of that 
peace which was afterwards so disgracefully consummated at 
Utrecht: a course to which he was urged at least as much by 
the difficulty of providing supplies for the maintenance of the 
war, as by any more patriotic motive. On the next meeting of 
parliament (December, 1711), the first trial of strength arose 
upon the resolution moved by Lord Nottingham (Swift's " Dis- 
mal"), who had just joined the Whig opposition, to append to 
the address to the throne the advice of the two houses, that no 
peace could be secure as long as Spain and the West Indies 
were left in possession of the House of Bourbon. The Whigs 
were still strong in the Lords ; the Duke of Marlborough's 

* This alludes to a commission of lunacy issued by the Chancellor 
in 1709 against Richard Viscount. Wenman: his case excited much 
interest at the time, and was made, like almost every thing then, a 
party matter. See the Tatler, No. 40. 



LORD COWPER. 163 

manly and impressive vindication of his conduct and policy, 
zealously seconded by Cowper, Halifax, and other leaders of 
their party, had a .powerful effect upon the house ; and not- 
Avithstanding the presence of the Queen, who, after divesting 
herself of her robes of state, had returned to hear the debates 
incognito, the resolution was carried by a majority of three. 
" The partisans of the old ministry (this is Swift's account) 
triumphed loudly and without reserve, as if the game were their 
own. The Earl of Wharton was observed in the house to smile 
and put his hands to his neck when any of the ministry were 
speaking, by which he would have it understood that some 
heads are in danger." This was, however, a premature tri- 
umph; the Tories maintained their ascendancy, and signalized 
it by the disgrace of Marlborough, whom they had not in the 
outset ventured absolutely to break with, although they had 
assailed him with every species of obloquy and insult, but 
whom they now expelled, his fame blackened with charges of 
peculation and mismanagement, from all his employments. 

The narrative of Lord Cowper's life during the remaining 
years of Queen Anne's reign, so far as we have the opportunity 
of tracing it, is litde else than the history of the parliamentary 
disputes and struggles between the two parties, in all the more 
important of which he was prominently engaged. He opposed 
with unremitting hostility the ministerial projects of peace, 
which terminated in the memorable and ignominious Treaty of 
Utrecht ; and subsequently denounced it in the most energetic 
terms : — " I cannot remove my finger from the original of our 
misfortunes, ' the cessation of arms.' We were then told, that 
if a blow had been struck, it would have ruined the peace. 
Would to God it had ruined this peace !" The breach which 
had already begun between Oxford and Boilingbroke, and the 
determination with which the latter pushed his schemes for de- 
feating the Hanover succession, and for the establishment of 
high-church and Jacobite ascendancy, produced the introduction, 
in the session of 1714, of the noted Schism Bill, the effect of 
Avhich, had it come into active operation, would have been to 
subject all classes of dissenters to the most inquisitorial and ex- 
asperating persecution. Of this odious measure, Lord Cowper 
was among the foremost adversaries ; and signed the spirited 



164 LORD COWPER. 

protest against its passing, which remains on the Lords' journals. 
On the very clay on which its operation was to have begun, the 
designs of its authors became at once abortive, and the whole 
fabric of their power was rent asunder, by the Queen's unex- 
pected death. 

The posture of affairs was now altogether changed : the 
Whigs were again in the full blaze of triumph ; and Cowper, 
wlio had been long in correspondence with the Elector, and 
immediately on the passing of the Act of Security, in 1706, had 
written to assure him of his zeal for his person and devotion to 
his service, was nominated one of the Lords Justices for the 
administration of the government until the coming of the new 
sovereign ; nor had four-and-twenty hours elapsed after his 
arrival at St. James's, when the great seal was demanded from 
Lord Harcourt, with circumstances almost of personal indignity, 
and forthwith delivered to Cowper, who (21st September, 1714) 
was declared a second time Lord Chancellor ; and almost im- 
mediately afterwards was honoured with the appointment of 
Lord Lieutenant of his native country. He retained the seals 
until, in the spring of 1718, after the breach between the parties 
of Walpole and Townshend on the one hand, and Stanhope and 
Sunderland on the other, and the elevation of the latter to the 
head of the government, finding the conduct of affairs taking a 
course more ancl more alien from his principles, and his position 
in the cabinet daily more unsatisfactory to him, he finally re- 
signed his high office, again to combat, for the short remainder 
of his life, in the ranks of opposition. The king accepted his 
resignation with reluctance, and testified his sense of his merits 
by advancing him (March 18, 1718) to the dignities of a Viscount 
and Earl, by the tides of Viscount Fordwich, of Fordwich in 
Kent, and Earl Cowper. The preamble to his patent was 
drawn up, in terms of the most glowing eulogy, by Hughes the 
poet, on whom he had conferred, unsolicited, an office of con- 
siderable emolument in the Court of Chancery, and who was 
the only one of his dependents whom he expressly recommended 
to the patronage of his successor. Lord Parker.* 

* Hughes appears to have been a great favourite with the Cowper 
family. Two copies of ecomiastic verses to his memory are prefixed 
to his poems, which bear the signatures of Judith and William Cowper' 



LORD COWPER. 165 

We have already touched on the most prominent of Lord 
Cowper's judicial merits. His legal knowledge was undoubtedly- 
extensive and various. The equity and common-law departments 
of practice did not at that time fall so exclusively into the hands 
of distinct classes in the profession, as to render it, as at present, 
a matter of necessity that an individual of even high eminence in 
the latter must have much to learn Vv'hen he came to administer 
the former. The principles of our equitable jurisprudence, 
moreover, were then comparatively in their infancy ; not, as 
now, defined by a long series of judicial determinations, and cir- 
cumscribed within a system of rules and a course of practice 
little, if at all less precise than those which regulate the admin- 
istration of the other branches of our municipal law. An inti- 
mate familiarity with precedents and practice was then, there- 
fore, of less immediate importance in the formation of an equity 
judge ; but as cases of the first impression arose almost daily, it 
was perhaps even more necessary than now that a mind deeply 
conversant with principles, and capable at the same time of 
applying them with a discriminating precision, should preside in 
the Court of Chancery. In these respects it is impossible, un- 
doubtedly, to claim for Lord Cowper a place in the same rank with 
a Hardvvicke or a Nottingham ; but the fact that scarcely any of 
his decrees were reversed on appeal (although some of them are 
recorded to have been unsatisfactory to " that great man, IMr. 
Vernon," who appears to liave been the oracle of the Chancery 
bar in those days) is a testimony to the soundness of his judicial 
determinations, the more unquestionable that from the compara- 
tively short period for which he held the seals on both occasions, 
an appeal from his judgment to the House of Lords was not 
necessarily, as in some later cases, in effect a rehearing of the 
cause before the same judge. His decisions are contained in the 
reports of Vernon and Peere Williams, and the Precedents in 
Chancery ; the third volume also of the collection entitled Re- 

the Chancellor's niece and nephew. Among his poems are tvro pane- 
g3Ticalodes to Lord Cowper, in one of which, in -imitation of Horace 
(Carm. ii. 20) he imagines himself transformed out of his unpoetical 
human shape by his patron's favour and friendship, and soaring as a 
swan. A few days before his death, he dedicated to the same liberal 
patron his well-known tragedy of the Siege of Damascus. 



166 LORD COWPER. 

ports in Chancery comprises a few of the most important cases 
heard before him during his first chancellorship. Valuable as 
these reports are to the lawyer — more valuable perhaps than 
some of the bulky volumesofourday, wherein everything, good, 
bad, and indifferent, that is made matter of question or experi- 
ment in Westminster Hall (at least before the courts of common 
law) is noted down with the same prolix fidelity — it is in vain to 
look to them for anything like a faithful representation of the 
language or style of elocution of the judge whose decisions they 
record. The last mentioned volume only pretends to give, in 
one or two instances, (particularly in the great case of Orby v. 
Mohun,) a verbatim report of the judgments ; they appear, how- 
ever, to be distinguished, in a literary point of view, more by a 
certain quaintness of diction than anything else — which, if it be 
not in truth the property rather of the reporter than of the 
judge, would seem to have been imbibed from a recent and 
laborious perusal of the erudite pedantries of Lord Coke. 

Lord Cowper's personal demeanour on the bench was marked 
at once by dignity and courtesy. In illustration of the latter, 
we find related by several collectors of anecdotes a story of his 
considerate kindness towards Richard Cromwell, the former Pro- 
tector, who, in the year 1705, was compelled to apply to the 
Court of Chancery against a daughter who disputed with him 
the title to a manor he inherited from his mother, and on whom 
the counsel opposed to him had been making some unworthy 
personal reflections. It is doubtful, perhaps, whether the story 
does not in truth belong to a later period, and to a descendant of 
the Cromwells instead of the Protector Richard. Miss Haw- 
kins, however, in her Memoirs, tells it of Cowper in the follow- 
ing circumstantial manner, on the alleged authority (derived 
through Charles Yorke) of Lord Hardwicke, who is stated to 
have been in court at the time — that however could scarcely be 
the case in 1705, for he was not then fifteen. " The counsel 
made very free and unhandsome use of his (Cromwell's) name, 
which offending the good feeling of the Chancellor, who knew 
Cromwell must be in court, and at that time a very old man, he 
looked round and said, 'Is Mr. Cromwell in court?' On his 
being pointed out to him in the crowd, he very benignly said, 
' Mr. Cromwell, I fear you are very inconveniently placed where 



LORD COWPER. 167 

you are ; pray come and take a seat on the bench by me.' Of 
course no more hard speeches were uttered against him. Bul- 
strode Whitelocke, then at the bar, said to Mr. Yorke, ' this day 
so many years I saw my father carry the great seal before that 
man at Westminster Hall.' " 

Lord Cowper presided in 1716 as Lord High Steward, on 
the trials of Lord Derwentwater and the other peers implicated 
in the northern rebellion, and in the following year on the im- 
peachment of the Earl of Oxford. His speech in passing sen- 
tence on the rebel lords who had pleaded guilty has been 
commended, we think, beyond its merits. The phrases are 
well chosen, the sentences well rounded ; but the whole compo- 
sition is cold, rhetorical, andunimpassioned. It may be doubted, 
indeed, whether either his powers of mind or his temperament 
qualified him for the forcible expression of the deeper and more 
passionate emotions, whether of anger or pity. It was in ^jer- 
suasion — clothed in all the garniture of a symmetrical and 
graceful eloquence — that his triumphs as an orator were 
achieved ; the regions of pathos and invective lay equally 
beyond him. 

The secret of Lord Oxford's easy escape from the perils of 
his impeachment is now pretty well understood to have lain, not 
in the disputes between the two houses on points of form which 
were apparently the proximate cause of his acquittal, but in 
the fears of Marlborough, of whose secret correspondence with 
the court of St. Germains he threatened to produce the proofs 
upon his trial. The Chancellor's demeanour towards his old 
opponent was liberal and courteous. Within a year or two 
afterwards — such are the changes and chances of political alli- 
ances — we find them sitting upon the same opposition bench, 
voting together in the same minorities, and joined in the same 
protests. 

The only measures of importance upon which Lord Cowper 
is recorded in the parliamentary reports as a speaker during his 
last occupation of office, are the Septennial Bill in 1716, and the 
Mutiny Bill a few weeks before his resignation. He is stated to 
have addressed the house at considerable length on both, but the 
merest fragments are preserved of his speeches. After his re- 
tirement from office, he appears much more frequently and pro- 



168 LORD COWPER. 

minenlly in debate. It is impossible within our limits even to 
"refer to all the occasions on which he is mentioned as having 
spoken at length. lie supported the " Bill for strengthening 
the Protestant interest," so far as it went to the repeal of the 
Schism Act, which he had so strenuously opposed in the last 
reign, but had not so far emancipated his understanding from 
the trammels of orthodox alarms, as to assent to the repeal of 
the sacramental test — a consummation, indeed, to which it took 
another century to reconcile the fears and consciences of the 
legislature. 

In the year 1720, the splendid bubble of the South Sea scheme 
threw all ranks of the community into a delirium of greedy ex- 
pectation. Lord Cowper was among the few who escaped the 
infection, and distinguished himself by an uncompromising op- 
position to the project, which he described as "like the Trojan 
horse, ushered in and received with great pomp and acclama- 
tions of joy, but contrived for treachery and destruction ;" and 
truly predicted that a contract which put such enormous profits 
into the pockets of a few interested individuals, could not prove 
otherwise than prejudicial to the community. In a few months 
the bubble burst, and almost universal ruin and bankruptcy 
ensued. In the course of the inquiry which followed into the 
conduct of the company, an incident occurred which showed 
the respect and influence Lord Cowper's character and talents 
commanded in the House of Peers. It was apprehended that 
Knight, the treasurer, who had been the negotiator of most of 
the fraudulent and corrupt practices by which the passage of the 
South Sea Act had been secured, was on the point of absconding 
out of the kingdom, and it was proposed to Lord Sunderland to 
prevent his escape by an immediate apprehension, without wait- 
ing for any parliamentary resolution against him. Sunderland, 
who had the best reasons in the world for not desiring to push 
matters to extremities against inferior delinquents, affected to ac- 
quiesce, but said, before any motion was made for the purpose, 
the Earl Cowper should be consulted, "for without his joining 
in with it there was no likelihood of its passing, and then Knight 
would be alarmed to no purpose. The other lord (who had made 
the proposal to Sunderland) applied to Earl Cowper, who seemed 
very averse to the taking any such step, till, upon Knight's 



LORD COWPER. 169 

further examination, the house should come to a resolution par- 
ticularly with regard to him. Upon which the matter dropped ; 
and it was suspected that the Earl of Sunderland, knowing the 
Earl Cowper's sentiments, referred that other peer to him on 
purpose to prevent the motion's being then made." Knight 
speedily received a hint of his danger, and the same night was 
on his way to France. 

On the opening of the session of 1721-2, the immense navy 
debt, the commercial treaty with Spain which had just been con- 
cluded, and the measures necessary to guard against the introduc- 
tion of the plague from France, where it had been raging to a 
dreadful extent during the summer, formed the principal topics 
of the royal speech. On all of 1hem warm debates arose, in 
which Lord Cowper was a frequent speaker and protester — for 
a protest was then a certain pendant to a debate, — and arraigned 
in severe terms the extravagance and mismanagement of the 
government. In reference to the last, he moved the introduction 
of a bill for repealing the provisions of a statute passed in the 
preceding session, which authorized the forcible removal of 
persons infected with the plague, or even of healthy per- 
sons out of an infected family, to a lazaretto, and the drawing 
lines of intrenchment round infected places. The protest 
which he drew up on the rejection of this bill is remarkable for 
the sensible and temperate views it expresses on the subject of 
contagion and quarantine, which have since been amply con- 
firmed by experience and scientific inquiry. 

Lord Cowper's conduct and principles did not entirely exempt 
him from the imputation levelled against so many eminent per- 
sons of that time, of being secretly favourable to the interests of 
the Pretender. On the discovery of the Jacobite conspiracy in 
1722, Christopher Layer, the barrister, who was first brought to 
trial, and made strenuous efforts to save himself by successive 
disclosures, and by impeaching almost every body whom he 
considered most obnoxious to the ministry, declared in one of 
his examinations before the secret committee of the House of 
Commons, that he had been told by his confederate Plunket, of 
the existence of a Jacobite club, called in Plunket's letters Bur- 
ford's club, of which Lord Orrery was chairman, and which met 
monthly at the several members' houses in turn ; and that among 

12 



170 LORD COWPER. 

its members were Lord Cowperand several other lords and com- 
moners whom he named — some of them of undoubted Jacobite 
principles ; and (in another examination) that Lord Orrery had 
assured him (Layer) that Lord Cowperhad told him 200 Tories 
and 90 Grumbletonians (a cant term by which the Whigs were 
designated among the Jacobite party) would try their last efforts 
in the House of Commons. One of Plunket's letters also, pre- 
served in Macpherson's collection of original papers, insinuates 
that " Cowper, the late Chancellor, if he could get off hand- 
somely from the Whigs, would join with the Princess Anne in 
all her measures." That this accusation, which rested altogether 
on the assertions of this Irish Jesuit and spy, was as unfounded 
as it was malicious, it is impossible to doubt. Lord Cowper 
expressed the strongest indignation at the charge, and declared, 
" that after having, on so many occasions and in the most diffi- 
cult times, given undoubted proofs of his hearty zeal and affec- 
tion for the Protestant succession, and of his attachment to his 
majesty's person and government, he had just reason to be 
offended to see his name bandied about in a list of a chimerical 
club of disaffected persons, printed in a parliamentary report, on 
the bare hearsay of an infamous person, notoriously guilty of 
gross prevarication." He even dropped a hint that the lies 
of the confessions were enough to give an air of fiction to the 
whole conspiracy ; and concluded by a motion for summoning 
Plunket to the bar of the House for examination on the subject. 
Lord Townshend, the Secretary of State, while he expressed the 
fullest conviction of the utter falsehood of the imputation, vented 
also his surprise " that a noble peer, w^hose abilities and merit 
had justly so great w^eight in that illustrious assembly, should 
upon a trivial circumstance ridicule as a fiction a horrid and ex- 
ecrable conspiracy, supported by so many proofs as amounted 
to a demonstration." The government refused to assent to 
Plunket's examination at the bar, and Lord Cowper thought 
it necessary to circulate a solemn declaration of his innocence, 
(which was pubhshed in the Historical Register for 1723), 
affirming his entire ignorance of the existence of the supposed 
club, and even of the persons of many of its alleged members. 
He was not, however, deterred by the promulgation of these 
calumnies, from opposing, in the most uncompromising manner, 



LORD COWPER. 171 

all the arbitrary proceedings of the government in the prosecu- 
»tion of the conspirators. He had already ineffectually resisted 
the suspension of the Habeas Corpus Act, at least for a longer 
period than six months, and now waged an unremitting, though 
equally fruitless war, against the Bills of Pains and Penalties, 
by which the government determined to punish Atterbury and 
his co-conspirators, on evidence of the most ultra-legal and in- 
conclusive character. His speech on the third reading of the 
bill against Atterbury is by far the most perfect and interesting 
specimen which has been preserved to us of his parliamentary 
eloquence; at once masterly in argument, admirable in illus- 
tration, rich and copious in diction and ornament. Our limits 
allow space for only one or two passages. He happily ridi- 
culed the absurd distinction between legal and moral evidence, 
and the position of the Solicitor General, Sir Clement "Wearg, 
that no evidence was, strictly speaking, legal, but what was 
mathematical : — 

"Legal evidence is nothing else but such real and certain 
proof as ought in natural justice and equity to be received ; and 
therefore the oath of one credible witness, being certain and suf- 
ficient to induce a belief of the things he swears, is legal evi- 
dence; and yet so tender is our law, so great a degree of 
certainty does it require, that as it now stands, two positive wit- 
nesses are required to convict a man of high treason. . . . Will 

any one pretend to say that the oral evidence of witnesses can 
be called mathematical? But the gentleman goes on, and says, 
that the evidence for this bill is legal in the ordinary sense of 
the word [it consisted mainly of hearsay and comparison of 
handwriting]; on the contrary, I beg leave to affirm that it is 
not legal in any sense whatsoever. No act of parliament has 
made it legal, nor can it in natural justice or equity be called 
so, for want of sufficient certainty. ..... The wisdom and 

goodness of our law appear in nothing more remarkably, than in 
the perspicuity, certainty, and clearness of the evidence it re- 
quires to fix a crime upon any man, whereby his life, his liberty, 
or his property may be concerned. Herein we glory and pride 
ourselves, and are justly the envy of all our neighbour nations. 
Our law in such cases requires evidence so clear and convincing, 
that every bystander, the instant he hears it, shall be satisfied of 



172 LORD COWPER. 

the truth of it. It admits of no surmises, innuendoes, forced 
consequences, or harsh conclusions, nor anything else to be offered 
as evidence, but what is real and substantial, according to the 

rules of natural justice and equity The distinctions 

that have been made, and the instances that have been produced, 
show only what legal evidence is sufficient for conviction, and 
what not; and if that were the question now before your Iqrd- 
ships, it would deserve another consideration. The question 
now is, whether any evidence at all has been offered to your 
lordships to fix treason upon the Bishop of Rochester? That 
there is no legal evidence it is agreed on all hands ; and I hope 
I have sufficiently satisfied your lordships, that if it be not legal 
it is not real evidence, nor such as in natural justice and equity 
ought to be received, and therefore no evidence at all." 

The peroration is striking : — 

" My lords, I have now done ; and if on this occasion I have 
tried your patience, or discovered a -warmth unbecoming me, 
your lordships will impute it to the concern I am under, lest, if 
this bill should pass, it should become a dangerous precedent to 
after ages. My zeal as an Englishman for the good of my coun- 
try obliges me to set my face against oppression in every shape ; 
and wherever I think I meet with it — no matter whether one man 
or five hundred be the oppressors — I shall be sure to oppose it 
with all my might. For vain will be the boast of the excellency 
of our constitution ; in vain shall we talk of our liberty and pro- 
perty secured to us by laws, if a precedent shall be established 
to strip us of both, where both law and evidence confessedly are 
wanting. 

" My lords, upon the whole matter, I take this bill to be dero- 
gatory to the dignity of the parliament in general, to the dignity 
of this house in particular *, I take the pains and penalties in it 
to be either much greater or much less than the bishop deserves ; 
I take every individual branch of the charge against him to be 
unsupported by any evidence whatsoever ; I think there are no 
grounds for any private opinion of the bishop's guilt but what 
arise from private prejudice only; I think private prejudice has 
nothing to do with judicial proceedings ; I am therefore for throw- 
ing out this bill." 



LORD COWPER. 173 

AVith this honourable display of principle and public spirit his 
distinguished career was closed. His health had been long 
delicate, and had for years been partially sustained only by a 
strict adherence to regimen in exercise and diet. Immediately 
on the prorogation of parliament, within a fortnight after the 
passing of the Bill of Pains and penalties, he retired, over-wrought 
with the exertions of the session, to his house in Hertfordshire, 
in the hope of recruiting his shattered health by the enjoyment 
of quiet and fresh air. But his constitution was enfeebled beyond 
recovery ; his strength daily declined, until, entirely worn out, 
on the 10th of October, 1723, he breathed his last, and was 
buried on the 19th of the same month in the parish church of 
Hertingfordbury. That church, which contains splendid monu- 
ments to his brother and other less eminent members of his 
family, has not even a tablet to record the talents and virtues of 
the distinguished founder of their nobility. 

He departed not however unhonoured or unsung. A few days 
after his death, the Duke of Wharton devoted the fortieth number 
of his True Briton to an elaborate panegyric, in the true style of 
a French funeral eloge, upon every part of his character and 
conduct, public and private ; of which if but the half was de- 
served, he must indeed have been a rare specimen of the union 
of all excellence and talent. We transcribe that portion of it 
which celebrates his excellences as a judge : — "The dignity of 
this weighty office sat easy and graceful upon him. In his per- 
son and countenance there was plainly to be seen a fine exterior 
figure of that inward worth, which every body experienced 
whom their own wants pressed, and his aff'ability moved, to 
approach him. No sooner was he mounted on the bench, but 
all honest men found with pleasure that righteousness and truth 
were the only pleaders that could be prevalent before him. 
Every poor and just man, though almost sunk by the weight of 
oppression, entered the Court of Chancery with an air of con- 
fidence, because he knew, as sure as he came there, so sure he 
should be eased of his burthen, and depart with a light and com- 
forted heart. The party that was cast, never went away with- 
out a full and plenary conviction of his having been in the wrong ; 
and if any person appeared guilty of injustice, the Chancellor 
laid it open in such a manner, that he rather excited in the per- 



174 LORD COWPER. 

son a compunction and remorse for his crime, than any indigna- 
tion at the discovery The delay of the law, which used 

to be numbered as one of its greatest grievances, was by him 
turned into despatch ; and he made his own labours the greater, 
to give ease to other people." This is tolerably warmly coloured ; 
but the terms in which his oratorical powers are lauded are still 
more transcendent: — "As great as all his other talents were in 
him, they would never have had any thing like that force and 
efficacy which they ever carried along with them, if he had not 
been blessed with the gift of eloquence. It was the orator that 
lighted up the most shining parts both of the statesman and 
judge. His discourse might not improperly be compared to 
lightning: it was divinely beautiful, and yet powerfully strong; 
it gilded and adorned whatsoever it touched upon, but struck down 
every thing that opposed it When he grew silent, ora- 
tory was struck dumb. Batsilent he can neverbe! No ! all the 
memorable acts of his illustrious life still speak, and speak aloud, 
this one great truth — That whoever would be a fine gentleman, a 
judge, a scholar, or a statesman ; that whoever would be a great 
man while he lives, and be esteemed so when he is dead, must 
necessarily become, in the first place, a good man." But prose, 
even so glowing, was insufficient for the due celebration of his 
fame. The age of elegy was not yet past ; and Ambrose 
Philips (a staunch Whig) sung his praises in a regular ode of 
strophes and antistrophes, of which the opening stanza may be 
a sample sufficient to satisfy the taste of our readers : — 

"Wake the British harp again 
To a sad melodious strain ; % 

Wake the harp whose every string, 
When Halifax resigned his breath, 
Accused inexorable death : 
For I once more must in affliction sing, 
One song of sorrow more bestow, 
The burden of a heart o'ercharged with woe ; 
Yet, O my soul, if aught may bring relief. 
Full many, grieving, shall applaud thy grief, 
The pious verse that Cowper does deplore, 
Whom all the boasted powers of verse cannot restore." 

Of Lord Cowper's legal and judicial character and qualifica- 



LORD COWPER. 175 

tions we have already spoken. With regard to his merits and 
failings as an individual, the virtues of integrity and kind-heart- 
edness appear to have been denied him by none ; but of the 
strictness of his morahty, or the depth of his religious impres- 
sions, there is less reason to entertain a very favourable opinion. 
He was a generous patron of literature and the fine arts : a hand- 
some collection of pictures, formed by his taste, still adorns the 
seat of his noble descendants in Hertfordshire. But of his 
scholastic acquirements, independently of the learning of his 
profession, Swift did not perhaps give a very unjust report, when 
he designated him " a piece of a scholar." One of the most 
amusing anecdotists of those times (Dr. King) indeed affirms, 
that for a century and a half this country had boasted but two 
Chancellors who could be called really learned men — meaning, 
we presume. Bacon and Somers; and informs us that Lord 
Hardwicke even learned Latin after he arrived at the woolsack 
—which however we take to be a slight exaggeration. Nor 
were Lord Cowper's powers of intellect, perhaps, of the highest 
order, or his grasp of mind to be at all compared with that of a 
Mansfield or a Thurlow. But whatever were his merits or 
defects in other points, in one capacity — as a consummate mas- 
ter of the external part at least of the art of oratory, he had 
scarcely a rival in his own time, and has had probably few 
superiors since. The elegance of his diction, the charm of his 
elocution, the graces of his manner, set off as they were by the 
advantages of an animated and pleasing countenance, and hand- 
some person, atoned for the want of strength, and not unfre- 
quently perhaps cast a veil over the scantiness of argument. Of 
the first, the mutilated remains in the Parliamentary History 
present us with a faint resemblance; of the latter we can know 
nothing but by the reports of his contemporaries. By them 
they were all loudly celebrated. The panegyric pronounced by 
Ben Jonson upon Bacon was applied to him — that " he com- 
manded when he spoke, and had his judges angry or pleased at 
his devotion. No man had their aff*ections more in his power ; 
and the fear of every man that heard him was lest he should 
come to an end." "The Lord Chancellor Cowper's strength 
as an orator," says Chesterfield, "lay by no means in his rea- 
sonings, for he often hazarded very weak ones. But such was 



176 LORD COWPER. 

the purity and elegancy of his style, such the propriety and 
charms of his elocution, and such the gracefulness of his action, 
that he never spoke without universal applause ; the ears and 
the eyes gave him up the hearts and the understandings of the 
audience." The Duke of Wharton's rhapsodical encomiums 
we have already quoted. The poets also took up the praises of 
his eloquence. Pope, when in imitation of Horace's " Frater erat 
Romse consulti rhetor," &:c. he introduces his two brother Ser- 
jeants bandying compliments, makes Cowper their model of a 
graceful speaker : — 

"Twas 'Sir, your wii' — and ' Sir, your eloquence' — 
'Yours, Cowper's manner' — and 'yours, Talbot's sense.'" 

Sir Charles Hanbury Williams, (or rather the uncertain author 
of a lively poem printed among his works, for it is wrongly 
attributed to him,) offering Sir Hans Sloane divers rarities to 
enrich his museum, enumerates amongst them 

" Some strains of eloquence, which hung, 
In ancient times, on Tully's tongue ; 
But which conceal'd and lost had lain, 
Till Cowper found them out again." 

Ambrose Philips soars a higher flight ; — 

" Hear him speaking, and you hear 
Music tuneful to the ear ; 
Lips with thymy language sweet, 
Distilling on the hearer's mind 
The balm of wisdom, speech refined, 
Celestial gifts !" 

These testimonies — others might be added — sufficiently attest 
the estimation in which he was held as an accomplished orator. 
The few specimens that remain of his written style, although 
pure and harmonious, certainly would not of themselves have 
prepared us to expect such high commendation. A few of his 
familiar letters are preserved in the correspondence of Hughes 
the poet — they are easy and agreeable, and strongly display the 
Avriter in the light of an amiable and kind-hearted friend, but can 
make little or no pretension to merit as compositions. 



LORD COWPER. 177 

As a public man, Lord Cowper's character may fairly claim 
the praise of an honourable and independent consistency, supe- 
rior to the temptations of power and gain, although falling short 
undoubtedly of that higher principle of public conduct which 
soars above the connexions and views of party — a principle 
admirable in theory, but the most difficult in the world to main- 
tain steadfastly in practice ; and the more so because its own 
good purposes are unattainable from the want of that strength 
of union which party only can exert. Cowper was, in truth, 
from first to last " a staunch Whig :" condescending to no mean 
compliances to secure his own personal aggrandizement, but not 
equally above engaging in the tracasseries of political strategics, 
for the advancement of the party whose general principles and 
policy he no doubt conscientiously believed the most conducive 
to the' welfare of his country. 

After the lapse of a century, it is in vain to seek for details of 
the private life even of an individual of the most eminent public 
station and character, unless they have been treasured up by 
some gossiping kinsman or intimate, or preserved in the form of 
autobiography, or at least in familiar correspondence. Of Lord 
Cowper's we know almost nothing. He is represented to us as 
a lively and agreeable companion — a bon vivanf, until the failure 
of his health compelled him to abstinence — good-natured, gene- 
rous, and hospitable : but of the scenes or circumstances in 
which these qualities were called into exercise, little or nothing 
can be traced. Although he kept a diary for some years, it 
records little besides political matters : — it still remains in manu- 
script only, in the collection of the Earl of Hardwicke. 

By his long and profitable career at the bar, and his various 
official emoluments, he realized, in addition to his patrimonial 
estate, an ample fortune, out of which he purchased the manor 
of Hertingfordbury, and built upon it, at a spot called Colne 
Green, a handsome house, which was pulled down in 1801, 
when the present more stately mansion ofPansanger was erected. 
At Colne Green were to be seen (when Dr. Kippis's collabora- 
teur in the publication of the Biographia, worthy Dr. Towers, 
went down to collect information about the family in 1789) the 
purses which had contained the seals during the several years of 
Lord Cowper's chancellorship, which however were too few to 



178 LORD COWPER. 

be applied to the thrifty purpose to which good Lady Hardwicke 
devoted her lord's — the hanging of the state apartment. Among 
the pictures, there were three different portraits of the Chancel- 
lor by Kneller, which no doubt are still preserved at Pansanger. 
Lord Cowper was twice (avowedly) married ; first, to Judith, 
daughter and heiress of Sir Robert Booth, of London, who died 
in April 1705, and by whom he had one child only, a son, who 
scarcely attained boyhood : secondly, to Mary, daughter of John 
Clavering, Esq., of Chopwell, in the county of Durham, who 
survived him a few months. By her he had two sons and two 
daughters ; the former were William, his successor in the title, 
and Spencer, who entered the church and became Dean of Dur- 
ham. The Chancellor's younger brother, Spencer, was not 
prevented by the heavy charge alleged against him in early life, 
from attaining rank and repute both in his profession and in par- 
liament. On his brother's elevation to the woolsack, he suc- 
ceeded him in the representation of Beeralston, and sat afterwards 
for Truro ; adhered with equal inflexibility to the Whig party, 
was a frequent and successful speaker, and one of the managers 
in the impeachments of Sacheverell, and of the rebel lords in 
1716. On the accession of George L, he was appointed Attor- 
ney-General to the Prince of Wales ; in 1717, Chief Justice of 
Chester ; and in 1727, a Judge of the Common Pleas, retaining 
also, by the especial favour of the Crown, his former office until 
his death in December 1728. His second son, John, became 
the father of another William Cowper, of even greater celebrity 
than he whose career we have been recording — the poet of " The 
Task." 



LORD HAECOURT. 



Few names have adorned the English peerage, which could 
boast their descent from a nobler source or more remote antiquity 
than that of Harcourt. Connected in its course, by blood or 
alliance, with several of the most distinguished famihes of Bri- 
tain, it claimed kindred also for centuries with one of the noblest 
houses that graced the proud aristocracy of France during the 
middle ages. When Rollo the Norman, at the close of the 
ninth century, overran and wasted the province of which, by a 
formal cession from Charles the Simple, he became the tributary 
sovereign, and which thenceforth received the name of Nor- 
mandy, his second in command, Bernard, a Danish chief of the 
blood royal of Saxony, was rewarded for his services in the 
expedition by a grant of several valuable fiefs, among which was 
that of Harcourt, within a few miles of the town of Falaise. He 
continued next the throne in trust and power during the reigns 
of Rollo and his son, and was nominated guardian of the infant 
successor of the latter, and regent of the duchy during his mino- 
rity. Of his two grandsons, Touroude or Turulph, and Tur- 
chetil, who were also joint governors and guardians of their 
infant sovereign, the elder had a numerous issue, and according 
to some genealogists was the progenitor of all the Scottish Ham- 
iltons ; the younger was also the father of a son, Anchitel, who, 
on the general introduction of surnames among the Norman 
nobles, first assumed that of Harcourt. His two eldest sons 
attended William the Norman in his descent on England ; and 
from the second of them, Robert de Harcourt, descended in a 
direct line, without a single interruption to the male succession, 
the noble subject of this memoir : — he was the lineal ancestor 
also of the Counts and Dukes of Harcourt in the peerage of 
France. The third in descent from this Robert became pos- 



180 LORD IIARCOURT. 

sessed, in the reign of Richard I., in the right of his wife Isabel 
de Camvile, of the manor and house of Stanton in Oxfordshire, 
which was thenceforward distinguished by the name of Stanton 
Harcourt, and has to the present time — a period of above six 
hundred years — remained the property of his descendants. It is 
beside our purpose to trace the succession or fortunes of the 
family, which continued of knightly rank down to the period of 
the Great Rebellion. Sir Simon Harcourt, its representative in 
that unhappy time, a brave soldier and determined royalist, was 
appointed military governor of Dublin on the breaking out of the 
Irish Rebellion in 1641, and is honourably remembered for the 
gallantry he displayed in raising the blockade of that city in the 
following year. Being killed by a musket shot in an attempt to 
dislodge a rebel garrison from the castle of Carrick Main, about 
four miles from the capital, in March 1643, his possessions de- 
volved upon his eldest son, PhiHp, who was knighted at White- 
hall immediately on the Restoration, and sat for Oxfordshire in 
the turbulent and short-lived parliament which met at Oxford in 
March 1681. By his wife, the daughter and heiress of Sir 
William Waller, the first parliamentarian general, (whose mother 
was Sir Philip's paternal aunt,) he had an only son, Simon, 
whose biography is here to be recorded in his capacity of a law- 
yer, but who is at least as well known to posterity as a politi- 
cian, and as the convivial associate of the wits and poets of his 
time. 

Of the course and circumstances of his early life, previously 
to his appearance in the scenes of political contest, the informa- 
tion afforded us is of the most scanty character, extending, in 
truth, little beyond the knowledge of a few dates. He was born 
at Stanton Harcourt in the year 1660 : where or under whose 
guidance the studies of his boyhood were prosecuted, we have 
found nowhere recorded ; they w^re completed at Pembroke 
College, Oxford, where he entered as a gentleman commoner in 
his sixteenth year. It appears, however, that, from whatever 
cause, he quitted the University without a degree.* Had he lived 

* In the entry of his creation as LL. D. in 1702 (the only occasion 
where his name is found in the list of graduates), he is merely describ- 
ed as "sometime of Pembroke College." 



LORD HARCOURT. 181 

a few years earlier, and exercised his pen in any of the muhifa- 
rious polemical controversies which were so hotly disputed 
during the greater part of Charles the Second's reign, we should 
doubtless have been able to resort to honest Anthony Wood for 
a copious exposition of his sayings and doings both as an Oxo- 
nian and a Templar, which now, for the want of some such 
worthy chronicler, we are constrained to leave in the oblivion 
which shrouds the personal history of so many of his more 
illustrious contemporaries. We may surmise, however, that it 
was during his residence at Oxford, the very head-quarters of 
monarchical and anti-schismatical zeal in those days, that he im- 
bibed the strong disposition towards Toryism and High-Church 
ascendancy doctrines, which he afterwards professed so staunchly, 
and which certainly he could not have derived from the example 
or instructions of his father ; who, educated under the guardian- 
ship of Sir William Waller, maintained a strict adherence to 
presbyterianism, and was distinguished as a liberal protector and 
benefactor of the ejected non-conformist clergy : nor is it impro- 
bable that Sir Philip's apprehensions lest this disposition should 
be confirmed by a longer residence in the University, were the 
occasion of his early removal. He had already (17lh May, 
1676) been admitted on the books of the Inner Temple; and 
having duly completed the requisite probationary period of seven 
years' studentship, — spent as much perhaps, if we may judge 
from the intimacies of his after life, among the symposia of Will's 
coffee-house* or the Half-Moon, as in the grave and solitary 
digestion of the Year Books and Lord Coke, — was called to the 
bar on the 25tli November, 1683: the same month which the 
execrable Jefferies, just raised to the chief seat in the King's 
Bench, blackened with the legal murder of Sidney, the first in 
the horrible catalogue of his judicial butcheries. At that period 
also. Lord Keeper Guildford, — with whom, by the half-idola- 
trous admiration of that matchless gossip his brother Roger, 
posterity has become much more familiar than his own legal 
attainments or judicial merits could possibly have effected for 

* At the corner of Little Russell Street and Bow Street, the favourite 
resort of Dryden :— the Half-Moon Tavern, in Aldersgate Street, was 
also frequented byDavenant, Wycherley, Congreve, and the other wits 
of the time. 



182 LORD HARCOURT. 

him, — was in the first year of his presidency in the Court of 
Chancery, where he honoured his seat by a more earnest and 
honest endeavour to reform the abuses of his court than has been 
exhibited since his time by much greater men, with far better 
opportunities. In neither court, however, in this the very worst 
period of our judicial history, was the young barrister likely to 
hear much that was calculated to moderate his zeal for preroga- 
tive, or his aversion to schismatics ; nor yet at the bar, which, 
" following its encouragings," as Roger North phrases it, had 
become as strongly sensible to the claims of prerogative, as in 
the preceding generation it had been alive to the superior excel- 
lence of republican and presbyterian institutions. Nothing certain, 
however, is recorded of Mr. Harcourt until, in the year 1690, on 
the assembling of the second parliament of William and Mary, 
he was returned on the Tory interest for Abingdon, of which 
borough he had been already elected recorder, and for which he 
continued to sit during all the following parliaments of that 
reign, and the first of Queen Anne's. His father's death, in 
1688, had left him entirely free to pursue his own political incli- 
nations without restraint ; and it is at all events some merit that 
he had not changed his opinions, or at least abandoned the pro- 
fession of them, with the change of times. But youth is little 
apt to do so; that is a consummation reserved, as it was in his 
case, for a period of life when the selfish and calculating expe- 
rience of the hackneyed politician has opened his eyes to the 
indiscretion (such is the phrase) of youthful enthusiasm. 

He appeared as a speaker within a few days after the meeting 
of parliament, and took a part in almost all the momentous dis- 
cussions which occupied that session. The first great debate 
arose upon that part of the bill for recognizing the king and 
queen, which went to declare the acts of the Convention parlia- 
ment good and valid ah initio; and which he, in common with 
the rest of the Tory members, resisted as being in contravention 
of the Bill of Rights. The startling rejoinder of Somers, that if 
the Convention were not to all intents and purposes a legal par- 
liament, the members of the present House, who had taken the 
oaths enacted by the Convention, and imposed taxes under the 
authority of its provisions, were guilty of treason, and bound to 
return to their allegiance to King James, silenced at once the 



LORD HARCOURT. 183 

threatened opposition, and the bill, which had been hardly drag- 
ged through the other House by the smallest majorities, passed 
the Commons in two days. The Tories, however, rallied their 
force in opposition to the Abjuration Bill and the suspension of 
the Habeas Corpus Act, on both of which occasions Harcourt is 
reported to us as a speaker : but from the scanty fragments pre- 
served of the debates, consisting only of short notes taken by one 
of the members (Mr. Anchitel Grey), it is impossible to guess at 
what length or with what effect he spoke ; probably he took some 
considerable part in debate, or he would not have been recorded 
at all. It would appear, however, either that his oratorical am- 
bition cooled considerably after its first essay, or that he has been 
visited with unaccountable neglect ; for his name occurs not once 
during the three following sessions. He was one of the small 
minority of commoners who declined to sign voluntarily the 
association for the king's defence, entered into by both Houses 
on the discovery of the assassination plot in 1696. The bill of 
attainder against Sir John Fenwick, in the same year, furnished 
the Tories with an opportunity of standing forth as the champions 
of liberty and justice, while it drove the Whigs into the arbitrary 
argument, so ill according with all their recent professions, of a 
state necessity superseding the ordinary and constitutional forms 
of law. Among the ablest impugners of this doctrine, — the appli- 
cation of which was undoubtedly not demanded by the exigency 
of the particular case, — was Harcourt, of whose " brave reply" 
to the Solicitor-General Hawles (on the committal of the bill) a 
portion has been preserved by Ralph, and deserves quotation for 
its concise and simple force : — 

" I know no trial for treason but what is confirmed by Magna 
Charta, per judicium parium, by a jury, which is every Eng- 
lishman's birthright, and is always esteemed one of our darling 
privileges ; or per legem terrae, which includes impeachments in 
parliament. But if it be a trial, it is a pretty strange one, where 
the person that stands upon his trial has a chance to be hanged, 
Hut none to be saved. I cannot tell under what character to 
consider ourselves, whether we are judges or jurymen. I never 
heard of a judge, I am sure I never heard of a juryman, but he 
was always on his oath : I never yet heard of a judge but had 
power to examine witnesses upon oath, to come to a clear sight 



184 LORD HARCOURT. 

and knowledge of the fact : I never heard of a judge, but if a pri- 
soner came before him, the prisoner was told he stood upon his 
deliverance, and he had not only a power to condemn the guilty 

but to save the innocent. Have we that power ? You 

cannot dispose of him otherwise than to send him back to New- 
gate, though you were satisfied of his innocence ; but in such a 
case the party must undergo a double trial, which is contrary to 
all the rules I ever heard of. If I am a judge in the case, I beg 
leave to tell you, for my own justification only, what definition 
I have met with of a judge's discretion : my Lord Chief Justice 
Coke says it is ' discernere per legem ;' and by that discretion I 
take leave to consider this case. If iudofes make the law their 

J D 

rule, they can never err ; but if the uncertain, arbitrary dictates 
of their own fancy, which my Lord Coke calls the crooked cord 
of discretion, be the rules they go by, endless errors must be the 
effect of such judgments." 

He proceeded to show the insufficiency of the evidence of the 
single witness to the treason in the particular case ; and on the 
third reading of the bill, again opposed to it in vain the powers 
of eloquence and reason, always most thrown away upon a go- 
vernment pursuing measures of unnecessary or unjust severity. 
His reputation as a parliamentary speaker was now high, and the 
odium which abrout this time began to attach itself to the Whigs, 
contributed to his importance as an efficient and zealous instru- 
ment of the party in opposition. In the session of 1700, when 
the Tories had gained the ascendant in the Commons, he was 
selected to impeach Lord Somers at the bar of the House of 
Peers, carried up the articles of impeachment, conducted the 
several conferences between the two Houses, which arose out of 
their differences as to the form and conduct of the trials, and 
was chairman of the committee appointed to direct the proceed- 
ings. We have adverted, in the Life of Lord Cowper, to the 
circumstances under which, owing to the indiscreet zeal of 
Somers's friends, the impeachment was carried in the House of 
Commons. According to the account of the debate given by Sir 
Robert Walpole (for the names of the speakers are not recorded 
in the Parliamentary History), it was Harcourt who, " with ex- 
tremely fallacious, but as plausible remarks as the subject could 
admit, to which Cowper's indignation moved him to reply," 



LORD HARCOURT. 185 

opened the protracted discussion, the purpose and effect of 
which was to give time for the impression produced by Somers's 
defence to wear away. This was among the last proceedings 
of the session.* The new Parhament, which met in January, 
1701-2, had scarcely made any progress in business, when the 
king's death struck down the reviving strength of the Whigs, 
and threw power and profit into the hands of the exulting 
Tories. Harcourt, among the rest, not unreasonably looked for 
a requital of his services to his party in some of the good things 
at their disposal; nor was it long before he was gratified by the 
removal of Sir John Hawles from the Solicitor-Generalship lo 
make way for his advancement. He was sworn into office 1st 
June, 1702, and was knighted the same day, in company with 
Northey, the Attorney- General, who, pliant enough lo serve 
either party, had escaped dismissal. In August following, he 
formed one in the train of courtiers who attended the Queen and 
her husband on their visit to Oxford, and having re-entered him- 
self of Christ Church, was among those who were honoured on 
the occasion with the degree of LL.D. His son, then an under- 
graduate of the same college, a young man of considerable 
accomplishment and promise, was selected for the honour of 
complimenting the illustrious visitors in a copy of verses, which 
are preserved among the Lansdowne MSS. in the British Mu- 

* In this year he had a narrow and curious escape from loss to the 
gentlemen who practised in those days on Hounslow Heath. We read 
the following in the London Post of June 1st, 1700: — " 'J'wo days ago, 
a lawyer of the Temple corning to town in his coach, [a manuscript 
note in the margin states it to have been Mr. Simon Harcourt,] was 
robbed by two highwaymen on Hounslow Heath of £50, his watch, 
and whatever they could find valuable about him ; which being per- 
ceived by a countryman on horseback, he dogged them at a distance; 
and they taking notice thereof, turned and rid up towards him; upon 
which he, counterfeiting the drunkard, rid forward, making antic ges- 
tures, and being come up wiih them, spoke as if he clipped the 
king's English with having drunk too much, and asked them lo drink 
a pot, offering to treat them if they would but drink with him: where- 
upon they, believing him to be really drunk, left him, and went for- 
ward again, and he still followed them till they came to Cue (Kew) 
ferry, and when they were in the boat, discovered them, so that they 
were both seized and committed ; by which means the gentleman got 
again all they had taken from him." 



186 LORD HARCOURT. 

seuiii, and exhibit a fair sample of easy and agreeable versifica- 
tion. 

The tide had turned against the Whigs throughout the country 
as well as at court, and the elections to the new Parliament pro- 
duced a triumphant majority of supporters to the Tory ministry. 
The controverted returns, also, were determined with the most 
bare-faced corruption and injustice in favour of their adherents. 
One of these cases, the most flagrant perhaps of all, in which 
Mr. Howe, one of the most factious and virulent partisans of the 
Tories during the last reign, was voted by a great majority duly 
elected for Gloucestershire, in direct contravention of the legal 
forms of inquiry into election petitions, passed on the motion, 
and mainly by the agency, of the Solicitor-General, and exposed 
him to no little scandal. He was often, Speaker Onslow informs 
ns, reproached with it to his face ; — " but," adds the same au- 
thority, with a severity justified by a review of Lord Harcourt's 
political career, "he was a man without shame, though very 
able." It was not very long, as we shall see presently, before 
he was paid for his conduct in this transaction in the self-same 
coin. 

His practice at the bar, up to the period of his appointment to 
office, appears, if we may judge by the unfrequent occurrence of 
his name in the King's Bench Reports, to have been by no 
means extensive. Throughout Lord Raymond's Reports, ex- 
tending without a break from 1694 to 1703, in which the names 
of counsel are almost always given, his occurs scarcely half a 
dozen times, and the earliest of these is in Trinity Term, 1700; 
and the only case in which it is to be found in the State Trials 
is in conjunction with no fewer than six other counsel, in defence 
of Mr. Buncombe, the Receiver-General of the Excise, charged 
with defrauding the revenue by false indorsements on Exchequer 
bills, in 1699. It is to be considered, however, that in the 
reports of courts of equity, in which probably his principal 
practice lay, the counsels' names are very rarely noted. His 
patrimonial fortune, diminished as it had been by inroads made 
upon it during the civil wars, still remained, doubtless, sufficient 
to relieve him from the necessity of subjecting himself to the 
drudgery of bar practice ; and his duties in Parliament, more 
congenial both to his talents and his ambition, scarcely permitted 



LORD HA.RCOURT. 187 

hira to pay an undivided attention to professional employmenls, 
even if it had been necessary. By his appointment as Solicitor- 
General, he secured a considerable accession of income, with- 
out being compelled to much increase of professional labour. 
The emoluments of the law officers of the crown, although not 
so ample as they had been under the reign of the last Stuarts, 
when the Attorney-General's profits amounted to about 567OOO 
a year (a sum equivalent to nearly twice as much at the present 
day), were still very considerable, and exceeded the salaries of 
any of the common-law judges. The latter, however, had now 
obtained some compensation in the comparative certainty of en- 
joyment which the legislature had secured to their offices. 

The first occasion on which we find the talents of the new 
Solicitor-General called into exercise in Parliament, was in the 
memorable debates on the case of Ashby and White, when, as 
may he surmised, he appeared as a strenuous supporter of the 
jurisdiction claimed by the Commons ; and moved the resolution 
adopted by the House, "that the sole right of examining and 
determining all matters relating to the election of members to 
serve in Parliament, except in such cases as were otherwise pro- 
vided for by act of Parliament, was in the House of Commons, 
and that neither the qualification of the electors, nor the right of 
the persons elected, was elsewhere cognizable or determinable :" 
— a position, the correctness of which, when limited to the 
proper object of the parliamentary jurisdiction, the determining 
who were rightly elected, was not impeached by the Whigs. 
His speech on this occasion, though plausible and clever, is not 
very remarkable for argument. Not long afterwards, the pro- 
ject of the union with Scodand was formally submitted to Par- 
liament. Harcourt was employed to draw the bill, which he 
did so ably and ingeniously as to cut off all debate upon those 
of its provisions to which the opposition had determined to 
object. The preamble was made to contain a recital of the arti- 
cles of union passed in Scotland, and of the acts made in both 
Parliaments for the security of their several churches, and then 
came a single enacting clause ratifying them all. Thus the 
recital, being mere matter of fact, afforded no room for objection : 
and the objectors did not venture to oppose the general enacting 
clause in toto, and found such difficulty in fixing on particular 



188 LORD HARCOURT 

points, and introducing provisoes applicable to them, that the 
bill, pushed forward with much zeal, passed the Commons be- 
fore they had recovered from the surprise into which the form 
it was drawn in had thrown them. We may infer from the 
expressions of Burnet, that the credit of this management was 
mainly, if not altogether, due to Harcourt. 

He filled about this time the chair of the Buckinghamshire 
quarter sessions ; his manuscript notes of his charges to the 
grand jury, at the several sessions from Midsummer 1704 to 
Michaehnas 1705, are preserved in the British Museum, and 
would contrast amusingly with a quarter-sessions charge at the 
present day. Aiming at far higher topics than county rates and 
beer-houses, the burden of their song is the excellences of the 
constitution, the church, and the laws, the perfections of the 
Queen, and the glories of the war. " The government of Eng- 
land" (thus the first sets out) "is the happiest constitution in 
the world, for the admirable frame and wisdom of the laws : for 
by them all ranks and degrees of men are insured in the liberty 
of their persons and the property of their estates. — How much 
happier, gentlemen, are we than our neighbours, who groan 
under insupportable miseries, even to the last degree of slavery, 
while we live in ease and hospitality, and eat the fruit of our 
own vine. Ml which we owe to the wisdom of our ancestors ; 
and take care that those laws by which we enjoy this happy 
state should have a due obedience paid them, for they will 
stand us in no stead without an honest, prudent, and impartial 
administration. — You, gentlemen, must enable us to put them in 
force by your presentments, else we cannot correct and punish 
the several offenders in our county. You are the eye of the 
county, and it may justly be presumable that no offence can be 
committed there but which must come to the knowledge of some 
of you, &c. As, gentlemen, we are blessed with such good 
laws, so we are under the most auspicious reign of the best of 
queens (whom God long preserve !) ; a queen wh,o will impar- 
tially put them in execution; a queen who is a zealous professor 
of the religion of the Church of England as established by law, 
and will always be a promoter of its honour and interest ; and a 
queen who wishes from the very bottom of her breast there were 
no separatists from it in her dominions," &c. 



LORD HARCOURT. 189 

These weighty truths the gentry of Buckinghamshire ran little 
risk of forgetting ; for we find them imported in full into all the 
subsequent charges, each being referred to by the initial words 
of the paragraph, thus : — 
"The government of England. 

How much happier, gentlemen. 

All which we owe. 

You, gentlemen, must enable us — " 
and so forth ; with variations to suit the particular topic of the 
time, such as a declamation upon the victory of Blenheim or the 
surprise of Gibraltar, a lament over the thrice-rejected bill 
against occasional conformity, or an electioneering tirade against 
schismatic and lukewarm churchmen, giving note of the declen- 
sion of Tory predominance. 

This last appeal, as far as it regarded Sir Simon's own elec- 
tioneering interests, was without effect: on the general election 
in the summer of 1705, he lost his seat for Abingdon, but he was 
returned by the government interest, in that and the following 
Parliament, for Bossiney. It was about this period that the 
series of intrigues and machinations was set on foot by Harley 
and his ally Mrs. Masham, which ended in the dismemberment of 
Lord Godolphin's ill-assorted cabinet. Of these Harcourtwas a 
zealous and busy abettor, and lent all his efforts to persuade the 
leaders of the Tory party into the interests of the intriguers. 
These arts were for the present unsuccessful, and Harley and 
St. John were compelled to withdraw from office until their 
schemes should be more fully matured. Harcourt, who had in 
the last year (April 23, 1707), been advanced to the post of 
Attorney-General, on the dismission of Sir Edward Northey, 
had now scarcely any alternative but to quit it in company with 
his confederates ; which he did with a formality of which there 
is no other recorded precedent — by a surrender of his patent by 
deed inroUed in Chancery; designed, we suppose, to attest the 
entire voluntariness of the sacrifice, since he could scarcely deem 
such a ceremony requisite in law. Had the mine been sprung 
more successfully, there is no doubt that the plot comprehended 
the removal of Lord Cowper from the woolsack, and the eleva- 
tion of the Attorney-General in his room. Although, however, 
the views of the confederates were defeated for the time, they 



190 LORD HARCOURT. 

retired willi little fear, supported by the prejudices of the Queen 
and the co-operation of her favourite, of carrying them into 
effect more securely. At present matters appeared to go wrong 
in more ways than one with the dispossessed Attorney- General. 
In the Parliament which assembled in November, 1708, he was 
again returned for Abingdon ; but on a petition lodged against 
his return by the government candidate, he was unseated, after 
two days' long and angry debate in a very full house,* by a de- 
termination as illegal and corrupt as that of which he himself 
had been the author six years before. Finding the turn the 
matter was about to take, he took his leave of the House in a 
short speech of great spirit and severity — the only portion pre- 
served of the debate : — 

" Whatever the determination of this House may be, this I 
am sure of, and it must be admitted, that I am duly elected for 
the borough of Abingdon as ever any man was. Had it been 
the pleasure of the House to have construed the charter under 
which this election is made, according to the natural and plain 
words of it, as the inhabitants have always understood it, — in 
such a sense all former Parliaments have frequendy expounded 
it, — had you determined the right of election to be in those per- 
sons who have without any interruption exercised it for 150 
years, you could not have insisted that I had not the majority. 
Even as you have determined the right, my majority is still 
unquestionable. No gentleman, with reason, can disprove my 
assertion, whatever reason he may have to refuse me his vote. 
You have been truly informed, the petitioner, on closing the 
poll, declared he did not come there with any prospect of suc- 
cess. But any opposition may give a handle to a petition ; no 
Tnatler for the justice of it, power will maintain it. Whoever 
sent him on such an errand,t what mean and contemptible 
notions must he entertain of the then ensuing Parliament! he 
must suppose them capable of the basest actions, of being awed 
and influenced by menaces or promises, of prostituting their con- 

* We need scarce]}^ remind our readers that the jurisdiction in elec- 
tion cases was not transferred to a select committee until the passing 
of the Grenville Act, in 1770. 

I Lord Wharton, who exercised a gross interference in the elections 
in that part of the country, is doubtless aimed at here. 



LORD HARCOURT. 191 

sciences at the word of command. Had there been such a Par- 
liament elected, and I declared not duly- elected, I should then 
have left my place with a compassion for the unfortunate friends 
that stayed behind me : whoever could have framed such a pro- 
ject to himself must undoubtedly have wished for, perhaps have 
wanted, such a Parliament. He must have been a person, the 
most abandoned wretch in the world, who had long quitted all 
notions of right and wrong, all sense of truth and justice, of 
honour and conscience. Whatever his dark purposes were, it is 
our happiness and the nation's that they were entirely disap- 
pointed in the choice of this Parliament. I cannot directly point 
him out, but whoever he was, I have so much charity as sin- 
cerely to wish he may feel, and be truly sensible of, the impartial 
justice and honour of a British Parliament." He then summed 
up the poll on both sides, and demonstrated that the counsel for 
the petition had left him the majority of two votes, and had added 
several unquestionable votes to his own poll. 

The reign of Queen Anne was not fruitful in state prosecu- 
tions ; and the only occasions on which we meet with Sir Simon 
Harcourt in the State Trials, during his employment as a crown 
officer, are the trials of the parties implicated in the forcible marriage 
of Mrs. Pleasant Rawlins, in 1702 ; of Mr. Lindsay, for treason 
in returning into the realm without a licence, in 1704; and of 
Tutchin, the libellous publisher of the Observator, in the same 
year. In the last case, the queen's counsel seemed to have 
revived the old prerogative strain which had been in use under 
the Stuarts. Montague, the defendant's counsel, was attempting 
to put an innocent construction on various parts of the libel: — 
*' But," says the Solicitor-General, " Mr. Montague says nothing 
of ' the prerogative the people have that the representatives are 
the judges of the mal-administration of their governors ; that they 
can call them to account, and can appoint such to wear the 
crown who are fittest for government;' — he passes by all this 
scandalous matter." " 1 did so, Mr. Solicitor," rejoins Mon- 
tague, " and I did it on purpose, because I look upon it as a matter 
not proper for you and me to talk of as advocates in this place. 
I think the rights of the princes and the power of the people too 
high topics for me to meddle with." The Attorney-General 
(Northey) construing this into a covert justification of the doc- 



192 LORD IIARCOURT. 

trine complained of, takes occasion afterwards to say, •* I am 
surprised to hear it jiistilied here by a counsel that the people 
have power to call their governors to account. / will always 
pi'osccitie any man that shall assert such doctrines.''^ — In the 
long and learned arguments which afterwards took place in the 
King's Bench, as to the amendment of the process in 'J'utchin's 
case, the Solicitor-General appears to have borne no part.* 

On the impeachment of Dr. Sacheverell, in 1709-10, Sir 
Simon Harcourt, in his character of leading Tory lawyer, was 
selected for the chief conduct of the defence. His services, how- 
ever, were necessarily withdrawn before the end of the trial; 
just as he concluded his opening speech for the defence, he had 
notice that he was returned to Parliament for Cardigan ; it was 
said indeed by some that he knew it before he began. He 
engaged in the case with a zeal and acrimony doubled by resent- 
ment of his recent extrusion from the House of Commons. His 
speech was necessarily rather that of a rhetorician than an orator, 
but it deserves the praise of having made the best of an indif- 
ferent case. He urged, in the first place, that the doctor's asser- 
tion of the illegality of resistance, on any pretence whatever, 
to the supreme power, was in fair construction to be understood 
as applying only to the supreme legislative power, in which 
sense there was no resistance even at the Revolution ; but even 
if it must be understood as said of the executive, he had not in 
terms applied it to the particular case of the Revolution; that 
while inculcating the general rule of obedience, he had not 
deemed it necessary to express the particular exceptions for 
extraordinary occasions which might lawfully be made out of 

* If poetical evidence might be trusted, we might conclude that Sir 
Simon enjoyed a considerable equity practice. The second book of 
Philips's poem on Cyder (published in 1706) opens with an invocation 
to the younger Harcourt, then in Italy, to return and grace his native 
land with " Latian knowledge :" — 

" Return, and let thy father's worth excite 
Thirst of pre-eminence; see how the cause 
Of widows and of orphans, he asserts 
With winning rhetoric, and well-argued law!" 
The monument to Philips's memory in Westminster Abbey was 
erected at Lord Harcourt's expense, as the stone itself rather ostenta- 
tiously informs us. 



LORD HARCOURT. 193 

it, and which were more properly to be implied, as was the case 
in every other general rule ; thus the apostles, enjoining obe- 
dience to rulers, masters, and parents, did not consider it neces- 
sary to specify the cases in which such obedience might be unfit 
or even sinful, but left them to justify themselves when they 
occurred. He then proceeded to insist, on the authority of cita- 
tions from the homilies and articles of religion, from the writings 
of divines of almost every age, and from numerous statutes, that 
the doctrine thus propounded by his client had the sanction of 
both church and law. The doctor himself evinced the high value 
he set upon his counsel's services, by presenting him with a 
massive gilt bason (for washing after dinner), having a compli- 
mentary Latin inscription engraved on the inside of the bottom, 
which was modelled in the form of an altar.* He had even a 
better title to the doctor's gratitude, for he shortly afterwards 
(ineffectually indeed) solicited a bishopric for him from the queen. 
The speech delivered by Sacheverell himself is said to have been 
the joint composition of Drs. Atterbury, Smalridge, and Friend, 
revised by Harcourt and Sir Constantine Phipps. 

♦ " Viro honoratissimo, 

universi juris oraculo, 

Ecclesiae et regni proesidi et ornamento, 

Simoni Harcourt equiti aurato, 

Magna" Britanniee sigilli magni custodi, 

et serenissimoe Reginag e secretioribus consiliis; 

Ob causam meam coram supremo senatu 

in aula Westmonasteriensi 

nervosa ctim facundia et subdola legura scientia 

benigne et constanter defensam ; 

Ob priscam ecclesiae disciplinam, 

inviolandam legum vim, 

piam subditorum fidem, 

et sacrosancta majestatis jura, 

contra nefarios perduellium impetus 

felieiter vindicata, 

votivum hoc manulavacrum, 

perpetuum fortitudinis pignus, 

D. D. D. 

devinctissimus cliens 

Henricus Sacheverell S. T. P. 

Anno salutis MDCCX." 



194 LORD IIARCOURT. 

These ill-advised proceedings gave the coup-de-grace lo 
Godolphiii's ministry, which had so long been tottering, and the 
road to power was once more open to the displaced Tories. In 
tlie general election this year (1710), Harcourt was once more 
returned for Abingdon ; but before he could be summoned to take 
his seat, he was called to repose on one more coveted and better 
stvffecL The determination with which the Lord Chancellor 
Cowper resisted Harley's persuasions to remain in office after 
the expulsion of his colleagues, gave hopes of a speedy vacancy 
on the woolsack, the succession to which Sir Simon had long 
regarded as his own. Swift, in his Journal to Stella, under the 
date of Sept. 14, writes, " We hear the Chancellor is to be sud- 
denly out, and Sir Simon Harcourt to succeed him." Harley 
determined, however, not yet to relinquish the hope of effecting 
a compromise between the two parties, and a few days after- 
wards, Harcourt found himself obliged to accept for the present 
his old place of Attorney-General, on the resignation of Sir 
James Montague. This was on the 19th ; on the 23rd, the 
Chancellor, having opposed in vain the issuing of the proclama- 
tion to dissolve the Parliament, absolutely refused to retain the 
seals. They were accordingly, after much ineffectual remon- 
strance, received by the Qeeen ; but instead of being delivered 
over to the expecting Attorney-General, were put into the hands 
of Commissioners. Harley still, it seems, cherished a lingering 
hope that some of the Whig leaders might be brought to terms, 
and St. John was therefore kept out of his promised secretaryship 
of state, as Harcourt was held back from the woolsack. The 
two mortified expectants accordingly laid their plans together 
to defeat this unwelcome arrangement. They expressed their 
determination to withdraw their services altogether, unless their 
claims were attended to ; and prepared to go down into the 
country forthwith, leaving instructions with Granville (after- 
wards Lord Landsdowne), an intimate acquaintance of both 
parties, to forward their designs by showing himself cool and 
reserved to Harley, which he engaged to do. The same evening, 
however, Granville posted to Harley, and gave him notice of * 
their determination. The result was, that " they Avere satisfied, 
and stayed in town :" on the 18th of October the great seal was 
delivered to Harcourt, with the title of Lord Keeper, and the 



LORD HARCOURT. 195 

next day he was sworn of the Privy Council ; but neither he nor 
St. John forgot that their appointments had been extorted rather 
than bestowed. 

On the meeting of Parliament in November, the new Lord 
Keeper had the misfortune ignorantly to offend against the 
etiquette of the peerage, and to incur the solemn reproof of the 
old Earl of Rochester, (the Queen's maternal uncle and presi- 
dent of the council,) for having presumed, not being himself a 
peer by patent, to introduce the Scotch representative peers to 
the Queen's presence. Lord Cowper good-naturedly came to 
his assistance, and maintaining that he had a right as Lord 
Keeper to act as he had done, and had committed no breach of 
etiquette, no further notice was taken of the matter. Being un- 
able to take part in the debates, except to put the questions, the 
only occasion on which his oratory was called into exercise 
during the session was that of presenting the thanks of the 
House to Lord Peterborough for his successes in Spain, in the 
course of which he took occasion to throw out an ungenerous 
taunt against Marlborough : — " The present I am now offering 
to your lordship is the more acceptable as it comes pure and 
unmixed, and is unattended with any other reward, which your 
lordship might justly think would be an alloy to it." Swift's 
journal and correspondence afford us at this period an amusing 
insight into the daily life of the ministerial leaders, who, what- 
ever were their secret causes of dissatisfaction, lived on external 
terms of the most cordial familiarity. After Harley's escape 
from the knife of Guiscard, the "Old Saturday Club" was 
formed, consisting of a few of his most intimate political asso- 
ciates, who met every Saturday to dinner at his house, and dis- 
cussed state matters over the wine. The only original members 
were Harley himself, the Lord Keeper, St. John, Lord Rivers, 
and Lord Peterborough. Swift was very early added to the 
number, and for some time the entree was confined to these ; by 
and by, other persons of rank of the Tory party were admitted, 
and the" meetings became less and less devoted to politics, and at 
last of an entirely Bacchanalian character, Harley's devotion 
to the bottle is well known, and Harcourt appears to have borne 
it an almost equal affection. Even Swift's shrewd observation 
was for a time deceived into the belief that all this show of good 



196 LORD HARCOURT. 

fellowship arose out of a sincere and cordial good understand- 
ing among the three ministers. He says, in a letter to Lord 
Peterborough, Feb. 1711, " I am sometimes talked into frights, 
and told that all is ruined, but am immediately cured when I see 
any of the ministry My comfort is, they are per- 
sons of great abilities, and they are engaged in a good cause. 
And what is one very good circumstance, as I told three of them 
the other day, they seem heartily to love one another, in spite of 
the scandal of inconstancy which court friendships lie under." 
But the scene was speedily changed. In a letter to the same 
nobleman, dated no later than the 4th of May following, he 
writes, "Our divisions run farther than perhaps your lordship's 
intelligence has yet informed you of; that is, a triumvirate of 
our friends I have mentioned to you ; I have told them more 
than once, upon occasion, that all my hopes of their success 
depended on their union ; that I saw they loved one another, and 
hoped they would continue it, to remove that scandal of incon- 
stancy ascribed to court friendships. 1 am not now so secure." 
And in the journal to Stella, (Aug. 21,) "The Whigs whisper 
that our new ministry differ among themselves, and they have 
some reason for their whispers, although I thought it was a 
greater secret. I do not much like the posture of things ; I 
always apprehended that any falling out would ruin them, and so 
I have told them several times." It was indeed little likely that 
there should be any cordial communion between the suspicious, 
dissembling, procrastinating coldness of Harley, and the brilliant 
and fiery ambition of St. John. And although the necessities 
of public business compelled the Treasurer to admit the Secre- 
tary of State to as much confidence as their uncongenial spirits 
would admit, this was never extended to Harcourt, whose un- 
seasonable determination to possess himself of the great seal had 
never been forgotten. Even after he became Chancellor, he 
complained in bitter terms to Lord Lansdowne, that he knew no 
more of the measures of the court than his footman ; that Lord 
Boilingbroke had not made him a visit of a year, and Lord Ox- 
ford did not so much as know him. In return for this distrust, • 
he appears to have studiously confined his support of the govern- 
ment in Parliament to his votes, for we scarcely find him open- 
ing his mouth in its cause while he was a member of it. In the 



LORD HARCOURT. 197 

" Inquiry into the behaviour of the Queen's last Ministry," 
Swift admits the full extent of his own credulity. " There could 
hardly be a jfirmer friendship in appearance than what I observed 
between these three great men, who were then chiefly trusted ; 
I mean the Lords Oxford, Bolingbroke, and Harcourt. I re- 
member, in the infancy of their power, being at the table of the 
first, where they were all met, I could not forbear taking notice 

of the great affection they bore to each other I did 

not see how their kindness could be disturbed by competition, 
since each of them seemed contented with his own district; so 
that, notwithstanding the old maxim which pronounces court 
friendships to be of no long duration, I was confident theirs 
would last as long as their lives But it seems the in- 
ventor of this maxim was a good deal wiser than I, who lived to 
see this friendship first degenerate into indifference and sus- 
picion, and thence corrupt into the greatest animosity and 
hatred ; contrary to all appearances, and much to the discredit 
of me and my sagacity." 

On the elevation of Harley to the peerage, it was generally 
expected that the Lord Keeper would be his companion in 
dignity; and a lively j etc d' esprit o[ Sw id's is extant, addressed 
to St. John, in which, " being convinced," as he informs him, 
" by certain ominous prognostics, that his life is too short to 
permit him the honour of ever dining another Saturday with 
Sir Simon Harcourt, Knight, and Robert Harley, Esquire," 
he begs to be allowed to take his last farewell of those gentle- 
men on the following day. The expected coronet was how- 
ever withheld a little while longer from his grasp ; Harley was 
ennobled alone, and at the same time received the staff of Lord 
Treasurer. When he came to take the oaths of office in the 
Court of Chancery, the Lord Keeper addressed him in a speech 
remarkable for the happiness with which the compliments were 
turned. The allusion to the ancestry of the new peer came 
with peculiar effect from one, who himself also had some of the 
blood of the Veres flowing in his veins. The speech is too 
'well known, if it were not too long, for transcription. A few 
months afterwards (Sept. 3d, 1711) the Lord Keeper was* him- 
self advanced to the peerage, by the title of Baron Harcourt of 
Stanton Harcourt, The preamble to his patent was drawn up 



198 LORD HARCOURT. 

at considerable length, and in terms of the most exaggerated 
eulogy. Collins is however of opinion that it " sets forth his 
eminent abilities vnthont hyperbole f^ — our readers may judge 
from the sample transcribed below.* 

Not only had his Lordship, as his eulogist has recorded, 
advanced the glory of his family, but he had managed tolerably 
to repair its damage; for in the same year he purchased from 
the Wemyss family, for the sum of ^£17,000, the manor and 
advowson of Nuneham Courtenay, in Oxfordshire, where his 
successor built and laid out the splendid mansion and park 
which have been ever since the principal residence of the family. 

While the stability of the new administration was endan- 
gered by internal dissension, it had become also the object of 
distrust to the thorough-going Tories ; who were satisfied with 
nothing short of a " clean sweep" of the Whigs out of every 
remnant of place, and demanded not only ascendancy for their 

* " He suffered in his paternal inheritance, which was diminished 
by the fury of the civil wars ; but not in his glory, which being ac- 
quired by military valour, he, as a lawyer, has advanced by the force 
of his wit and eloquence; for we have understood that his faculty in 
speaking is so full of variety, that many doubt whether he is fitted to 
manage causes in the lower court, or to speak before a full Parliament ; 
but it is unanimously confessed by all, that among the lawyers he is the 
most eloquent orator, and among the orators the most able lawyer. . . . 
Whom, therefore, famished with such great endowments of mind, all 
clients have wished to defend their causes, not without reason we pre- 
ferred to be one of our counsel at law; whom we a second time called 
to be our Attorney-General, which office he had once before sustained 
with honour as far as it was thought convenient ; whom, lastly, since we 
perceived that all these things were inferior to the largeness of his 
capacit)'-, we have advanced to the highest pitch of forensical dignity, 
and made him supreme Judge in our Court of Equity. He still con- 
tinues to deserve higher of us and of all good men ; and is so much a 
brighter ornament to his province, as it is more honourable than the 
rest he has gone through ; he daily dispatches the multitude of suits 
in Chancery, he removes the obstacles which delay judgment in that 
Court, and takes special care that the successful issue of an honest 
cause should cost every plaintiff as little as need be : Therefore, that 
the most upright asserter of justice may not be without a vote in the 
most supreme Court; that he who can think and speak so excellently 
well, should not be silent in an assembly of the eloquent, we grant him 
a place among the Peers," &c. 



LORD HARCOURT. 199 

own party, but retaliation and persecution upon their opponents. 
To compel the ministry into these measures, they formed them- 
selves into an association of about a hundred, under the name 
of the October Club. Swift's pen was employed to reason with 
the intemperate zeal of these dangerous allies, and the "Advice 
to the October Club, by a Person of Honour," was accordingly 
published in the winter of 1711. Its title, and certain allusions 
to the supposed writer's previous personal efforts to persuade 
the parties into moderation, caused the pamphlet to be attributed 
(as was the intention of those in the secret) to Lord Harcourt, 
and it is accordingly ascribed to him by most of the contempo- 
rary historians. The peace of Utrecht buoyed up the unsteady 
ministry for a time, but their increasing dissensions made it mani- 
fest that their league could be of no long duration. In the 
midst of these, however, Harcourt, whom it probably became 
desirable for the Treasurer to endeavour to conciliate in some 
degree, was gratified (April 7th, 1712) with the dignity of Lord 
Chancellor. There is little doubt, although the proofs are not 
so direct with regard to him as some other members of the 
-government, that all this while he was secretly leagued in the 
interests of the Pretender, although, on the accession of the 
House of Hanover, when the connexion became one of pro- 
bable personal danger, or perhaps rather sooner, he abandoned 
it for other views. In the spring of 1713-14, a circumstance 
occurred which drew upon him the suspicion of indirect dealing 
in his official capacity, as to the securities provided by law for 
the Protestant succession. The Regency Act, passed in 1705, 
provided that three copies of the instrument for the nomination 
of regents by the next successor should be deposited with the 
Archbishop of Canterbury, the Lord Chancellor, and the Hano- 
verian resident for the time being (whose credentials were to be 
inrolled in Chancery), and sealed up by them. It was now for 
the first time discovered, that to two of these documents the 
seals of the late Chancellor and resident, instead of the present, 
still remained affixed, so that in case of the Queen's demise 
they could not have been regularly opened ; and moreover that 
the Baron de Bothmar, in whose hands, as resident, one of 
them was deposited, had never been duly accredited in that 
capacity. A messenger was dispatched with all speed to 



200 LORD HARCOURT. 

Hanover, new instruments were prepared, and the resident de- 
manded to have his credentials inroUed as required by llie act. 
The Chancellor promised that they should be ready for him in 
a few days ; a week having elapsed, he made a more peremp- 
tory applicaton, and then obtained, not the properly attested cre- 
dentials, but a copy only on a plain sheet of paper. Hereupon the 
Lord Chief Justice Parker, who had been consulted throughout, 
undertook to press the Chancellor upon the subject ; he shifted 
the blame upon the inexperience of a newly-appointed officer ; 
and at length, not however until the end of March, the docu- 
ments were duly attested, and deposited in the proper custody. 

The breach between the two ministerial chiefs, which had 
been long widening, had now grown utterly irreconcilable; nay, 
the unrestrained bitterness of open and contumelious reproach 
had taken the place of their former friendship. Each tampered 
separately with the Whigs, with the scarcely disguised purpose 
of supplanting the other ; each maintained a private correspond- 
ence with the Hanoverian court, and secretly accused the other 
to the Elector and his agents of a treacherous adherence to the 
views of the Pretender. Through all these intrigues and ani- 
mosities, the star of Oxford's ascendancy declined daily. The 
Queen, sufficiently cold-hearted by nature, and always enslaved 
by female influence, was easily alienated from her minister by 
the jealous insinuations and complaints of Lady Masham, to 
whom he had given some real causes of offence, and had been 
maliciously represented as the author of many more. Lord Ox- 
ford himself says in a latter to Swift, that from the 28th of July, 
1713, when he wrote to Bolingbroke a long letter "containing 
his scheme of the Queen's affairs, and what it was necessary 
for Lord Bolingbroke to do," he had been without any substan- 
tial power in the cabinet. The Chancellor, the third in the 
ministerial triumvirate, as it was commonly termed, moved at 
once by resentment and interest to desert the falling fortunes of 
the Treasurer, attached himself openly to the interests of Bo- 
lingbroke, who now admitted him to the closest confidence. 
Their scheme, when they should have succeeded in their col- 
league's overthrow, was, it seems, to estabhsh the Hanoverian 
succession, to replace Marlborough at the head of the army, and 
if the Duke of Ormond acquiesced in this change, to allow him 



LORD HARCOURT. 201 

the post of Lord Lieutenant of Ireland, otherwise to break with 
him entirely, and dismiss him from all his employments. They 
had now, therefore, if this statement be well founded,* satisfied 
themselves that the restoration of the Stuart dynasty was a hope- 
less case. Swift, having exhausted persuasion and entreaty in 
vain endeavours to solder up the breach, retired in disappoint- 
ment and vexation into the country, and vented his chagrin in 
satirical verse. In "The Faggot," applying to the contentious 
ministers the fable of the old man and the bundle of sticks, he 
bids them bind together their wands of office, which ran so great 
a risk of being broken by disunion. The Chancellor comes in 
for a not over complimentary notice : — 

« Come, courtiers, every man his slick ; 
Lord Treasurer, for once be quick ; 
And that they may the closer cling, 
Take your blue ribbon for a string. 
Come, trimming Harcourt, bring your mace, 
And squeeze it in, or quit your place ; 
Dispatch, or else that rascal Northey 
Will undertake to do it for thee. 
And be assured the court will find him 
Prepared to leap o'er sticks, or bind 'em." 

The doctor's correspondence with Erasmus Lewis, the secretary 
and a staunch adherent of the Lord Treasurer, portrays amusingly 
the last scenes of the intrigue. Thus, under the date of July 
17 (1714), Lewis writes : — "The great attorney who made you 
the sham offer of the Yorkshire living,t had a long conference 
with the Dragon:}: on Thursday, kissed him at parting, and 
cursed him at heart. He went to the country yesterday, from 
whence some conclude that nothing will be done soon." The 
Queen, however, having been made acquainted with Oxford's 
negotiations with the Whig lords. Lord Harcourt was sent for 

• It is given in Carte's memoranda subjoined to Macpherson's col- 
lection of Original Papers. 

f Swift had been led to expect a presentation to a valuable Yorkshire 
living, out of the patronage of the Chancellor. 

+ A nickname expressive of the wily and dissembling character of 
the Treasurer. "P.lingbroke's common appellative, Mercurialis, was no 
JLejt* applLable to him. 

14 



202 LORD HARCOURT. 

in great haste to town ; and at a cabinet meeting in the Queen's 
presence the following day, the most vehement reproaches 
passed between the Treasurer on the one side, and Lady Masham 
and the Chancellor on the other, — the former declaring that " he 
had been foully wronged and abused by lies and misrepresenta- 
tions, but he would be revenged, and leave some people as low 
as he found them." Lewis writes, July 22nd : — ♦' They eat 
and drink and walk together, as if there were no sort of disa- 
greement; and when they part, I hear they give one another 
such names as nobody but ministers of state could bear without 
cutting throats." And two days afterwards — " The moment I 
had turned this page, I had intelligence that the Dragon has 
broke out in a fiery passion with my Lord Chancellor; sworn 
a thousand oaths he would be revenged, &c." On the 27th 
Lord Oxford was deprived of his staff: but the Queen, who had 
been long in a weak state of health, shaken and enfeebled by 
these scenes of violence and animosity, was in three days more 
upon her death-bed. On the 1st of August she died, and the 
whole scheme of treachery and selfishness was shattered to 
pieces. " The Earl of Oxford was removed on Tuesday," 
writes Bolingbroke a few days afterwards to Swift, — " the 
Queen died on Sunday. — What a world is this, and how does 
fortune baffle us !" 

On the arrival of the new sovereign, the Chancellor, who had 
exercised during an interval of six weeks the dignified functions 
*of head of the regency, repaired in all state to meet him at 
Greenwich, carrying with him, as some possible passport to 
favour, the patent for the young Prince of Wales's peerage ; but 
he was received with the most mortifying coldness, and was one 
of the few lords who, when the king had retired to his chamber, 
were not called in to pay him their personal congratulations. 
Scarcely had his majesty set foot in St. James's, than, without 
further communication of any sort with the Chancellor, Lord 
Townshend arrived at his house to demand the great seal, which 
was instantly transferred to Lord Cowper, and the same day his 
name was struck out of the list of privy councillors. 

The consideration of Lord Harcourt's judicial character and 
qualifications need not detain us long. His professional learning, 
never very assiduously cultivated, was undoubtedly not of the 



LORD HARCOURT. 203 

first order. Lord Brougham has estimated him truly as " a re- 
spectable lawyer, but not to be ranked with the Parkers, the 
Finches, or the Hardwickes." He appears, indeed, to have 
been not entirely unconscious of his deficiency of legal know- 
ledge, since we find him on several occasions seeking support in 
the judgment of the Master of the Rolls, Sir John Trevor. la 
one case, for instance, having expressed an opinion that certain 
process issued against a wife during her husband's absence 
abroad was irregular, but being met by an observation from 
counsel which staggered him, "my Lord Keeper said, he would 
ask the Master of Rolls his opinion, and be governed by that. 
Afterwards the Master of the Rolls coming into Court, was 
clearly of opinion that the process was regular, and said the 
practice of the Court had been constantly so,^^ — and so accord- 
ingly the case was determined. In another matter, on which 
the Master of the Rolls had already adjudicated, "ray Lord 
Keeper com'ing into Court, and being asked his spinion, said he 
was of the same opinion, to prevent a rehearing^'' before him- 
self. Not a few instances occur in which the reporters express 
the dissatisfaction of the bar at his decrees, and an unusual num- 
ber of them were reversed upon appeal, or have been overruled 
by subsequent authorities. Nor did he compensate for these 
deficiencies by any extraordinary assiduity in despatching the 
business or reforming the abuses of his Court. The number 
of his decisions does not much exceed the half of those pro- 
nounced during the same period of time, immediately before and 
after Iiis four years' occupation of office. Of any attempts to 
remedy the grievances of the Court, even in the department 
within his own direct control, that of its practice, he was as 
guiltless as any of his predecessors. Mr. Parkes observes, in 
his History of the Court of Chancery, that " there is a singular 
interregnum or chasm in the collection of orders, with the ex- 
ception of two which are immaterial, from the year 1701 to 1721. 
One short order only, by Lord Harcourt, appears in Mr. 
Bearaes's volume. As these corrective mandates were the only 
partial reform and improvement in the practice, the absence of 
all addition to them is a proof of the culpable negligence of the 
Chancellors of that period, and a presumption that the abuses of 
the Court .not only were continued, but by such neglect mate- 



204 LORD IIARCOURT. 

rially increased." — By those, however, who speak most unfa- 
vourably of his character, the virtue of judicial integrity is 
ceded to liim. On Lord Macclesfield's impeachment in 1725, 
when some inquiry took place into the alleged sale of two Mas- 
terships in Chancery in Lord Harcourt's time, it clearly ap- 
peared, that in neither case the funds of the suitors had been 
invaded or endangered, nor were the sums paid greater than long 
usage — however indefensible — had sanctioned : and it was not in 
an age of almost universal corruption and venality that any spe- 
cial exercise of self-denial in such a case was to be expected. 

Lord Harcourt was now of course leagued heart and hand 
against the government which had so unceremoniously dis- 
placed him. Perhaps, however, amidst the retaliatory measures 
adopted against his party, he did not feel himself so perfectly 
secure as to take at once any very openly active part in opposi- 
tion ; for we scarcely meet with his name in the debates, until 
the proceedings on the impeachment of Lord Oxford (June, 
1717) furnished him with an opportunity of cancelling some por- 
tion of his old injuries towards his fallen colleague. For the 
purpose of raising an issue between the two Houses which 
might serve as the ostensible cause of defeating the proceedings 
altogether, and representing that it would be a great hardship 
upon the noble prisoner to appear every day at the bar as a 
traitor, and be at last probably found guilty, if at all, only of 
high crimes and misdemeanors, he moved that the Commons 
should not be admitted to proceed to proof of the articles for 
high crimes and misdemeanors, until judgment had been first 
given upon the articles for high treason. The motion, by the 
connivance of the government, was carried without diflaculty ; 
the Commons, as had been foreseen, insisted on their right to 
proceed after their own course, and refused to be parties to that 
laid down for them : the form of a trial was gone through, no 
accuser appearing, and the Earl took an easy leave of his two 
years' sojourn in the Tower. 

The discussion of the Mutiny Bill, in the following session, 
gave rise to frequent and warm debate, in which Lord Harcourt 
appeared on sevejal occasions in vehement opposition to the 
measure, especially to the clauses investing courts-martial with 
power over the life and person of the soldier; uttered, much pa- 



LORD HARCOURT. 205 

triotic declamation in praise of trial by jury, and inveighed 
against the dangerous and unconstitutional designs to which 
alone the establishment of this extraordinary judicature, and the 
maintenance of so large a standing army, could reasonably be 
attributed. His name, however, is affixed to few of the protests 
which crowd the journals at this period, and which served to 
distinguish those of the opposition peers who desired to be un- 
derstood as uncompromising and irreconcilable adversaries of 
the ministerial policy. We shall see presently that this was a 
character to which his opposition had indeed little title. 

In the year 1720, he sustained a severe blow in the death of 
his only son, of whom we have before spoken, and whose talents 
and accomplishments appear to have been such as might justly 
make his early loss a subject of deep regret. We learn that he 
bore an extraordinary personal resemblance to his father. Gay, 
in his poem addressed to Pope on the completion of his Homer, 
in which he describes all the poet's friends as assembled to 
welcome his return from Greece (an imitation of the 46th Canto 
of the Orlando Furioso), introduces among them the two Har- 
courts — 

"Harcourt T see, for eloquence renown'd. 
The mouth of justice, oracle of law! 
Another Simon is beside him found, 
Another Simon, like as straw to straw." 

Pope's epitaph, inscribed upon his monument at Stanton Har- 
court, is known to every reader of poetry. It received divers 
corrections at the hands of Lord Harcourt, who appears to have 
been but indifferently satisfied with it when first submitted to 
his criticism. For instance, the sixth line — 

"Since Pope must tell what Harcourt cannot speak" — 

stood originally— 

"Harcourt stands dumb, and Pope is forced to speak" — 

until recast by his lordship's desire, his ear being especially dis- 
pleased with the inharmonious participle " forced." The 
"father's sorrows" recorded in the epitaph had doubtless tole- 



206 LORD IIARCOURT. 

rably subsided during the Uvo years which had elapsed since his 
loss, otherwise some imputation might not unreasonably have 
rested upon the sincerity of a sorrow, which could busy itself in 
the trivialities of verbal criticism over the grave of an only son. 
We now arrive at the period of Lord Harcourt's political life 
which most of all needs an apology, if indeed any apology could 
avail to excuse the prostitution of public any more than of private 
character and honour. Sir Robert Walpole, who, if he rated 
public virtue at somewhat too cheap an estimate when he affirmed 
that every man had his price, at least had a special faculty of 
discovering those who had, thought he perceived some symp- 
toms which indicated that Lord Harcourt's opposition was not 
so inexorable as to be proof against the persuasives he had it in 
his power to apply to it. He was not mistaken. On the 14th 
of July, 1721, his lordship, advanced to the dignity of a viscount, 
with a pension swelled from two to four thousand a year, trans- 
ferred himself without difficulty from the opposition to the minis- 
terial bench, and was heard in ready defence of the self-same 
measures which he had denounced not long before as destructive 
of his country's liberties. To see political virtue ^eighed in a 
different scale from personal integrity, even by men of the highest 
dignity of rank and station, — to see the hand that would reject 
with indignant scorn the bribe of the suitor, close without diffi- 
culty upon the pension of the minister, — is a spectacle too com- 
mon to excite our surprise, however deeply it may challenge our 
reprobation, and however degrading the estimate which its fre- 
quency has fixed upon the character of public men in this coun- 
try. It would seem that Lord Harcourt's conduct was foreseen 
by his friends. Prior writes to Swift, in April, 1721, " The 
bishop [Atterbury, who was also, but with less justice, suspected 
of a design to go over to the ministry] cannot be lower in the 
opinion of most men than he is ; and I wish our friend Harcourt 
were higher than he is." His first piece of service to the court 
consisted in an ineffectual attempt to screen Aislabie, the corrupt 
abettor of the South Sea frauds, from the penalties of his delin- 
quency. On all the questions agitated in the following session 
— the Navy Debt, the Spanish Treaty, the Quarantine Act, &;c. 
(fee. — he was a frequent speaker in support of the administration. 
The very Mutiny Act, on which three years before he had ex- 



LORD HARCOURT. 207 

pended so much indignant patriotism, he now discovered to be 
necessary to the support of the government, and forgot that it 
was an invasion of the rights of the people. Not long afterwards 
came the proceedings against Atterbury, no less objectionable in 
their character and tendency, and even more destitute of founda- 
tion in legal proof, than those which Harcourt had himself 
denounced with such zeal and force in the case of Sir John Fen- 
wick. Here, however, we find him recording his practical denial 
of the principles for which he then contended ; and that against 
the intimate associate of his former life, whose bishopric had 
been conferred at his own solicitation, in reward of those very 
principles and opinions which now he, at least, could only accuse 
the bishop of having followed up more consistently and unflinch- 
ingly than himself. 

From the view of his political career, thus sullied by an un- 
worthy abandonment of principle, it is far more grateful to turn 
to that of his private life, passed in familiar communion with 
almost all the wit and genius of his time. His intimacy with 
Swift has been already seen ; with all the other literary orna- 
ments of that age, from whom the divisions of party did not 
absolutely estrange him, — Pope, Prior, Gay, Parnell,,Arbuthnot, 
&c. &c. — he lived on terms of no less familiar intercourse. Of 
these, Pope at least, and probably most of the others, owed their 
acquaintance with him to Swift's introduction. "Of my later 
friends," Pope writes to the Dean, in 1723, "the greater part 
are such as were yours before ; Lord Oxford, Lord Harcourt, 
and Lord Harley, may look upon me as one entailed upon them 
by you." At the old mansion-house at Stanton Harcourt, 
which had remained unoccupied by the family since Sir Philip's 
death in 1688, but of which a few rooms continued habitable, 
Pope fixed his retreat during the summers of 1718 and 1719, 
and translated there the latter volumes of his Iliad. Gay was at 
the same time domiciled at Lord Harcourt's neighbouring house 
of Cockthorpe, and they were almost the only visitors admitted 
to interrupt the poet in his laborious seclusion. It was here 
that the melancholy incident occurred of the death of two rustic 
lovers by lightning in the harvest field, which is described by 
Pope, with rather too much poetical finery, in a letter to Lady 



208 LORD HARCOURT. 

Mary Wortley Montague, and which Thomson afterwards 
wrought up into his ornamental episode of Celadon and Amelia. 
In the society of these distinguished friends, adorned also by the 
eloquent philosopliy of Bolingbroke, the cheerful wit of Peter- 
borough, the accomplished taste of Orrery, Lord Harcourt had 
far higher enjoyments within his reach than could reward him 
for a continued agitation in the strife of politics, at the expense 
of consistency and honour, even with the additional gratifications 
of a pension doubled in amonnt, and the precedency of a vis- 
count. That he was himself a man of polished taste and man- 
ners, and highly accomplished in general literature, although 
deficient probably in the more profound acquirements of scholar- 
ship and science, is discernible even in the [ew specimens which 
remain of his composition, and is abundantly confirmed by the 
testimony of his contemporaries.* 

Although the minister had thus deemed it desirable to silence 
Lord Harcourt's opposition, he was never so far valued or trusted 
as to be again put in possession of any office under the crown; 
he was re-admitted, indeed, to the council board, and on three 
several occasions appointed one*of the Lords Justices for the 
administration of the government during the King's absence in 
his German dominions. He was the chief ostensible negotiator 
of Bolingbroke's recall from exile in 1725. The Duchess of 
Kendal, whose influence had been propitiated by a bribe of no 
less than 5611,000, had secured the King's concurrence, and 
Harcourt, who had for some time maintained a confidential cor- 
respondence with the illustrious exile, was employed to move 
the matter in council. Walpole's urgent remonstrances were 
of no avail against the influence of the favourite ; and that proud 
and restless spirit returned, to exhaust itself in vain yearnings 
after the station and power from which it was excluded, and of 

* He has been himself quoted as possessed of no mean powers in 
poetry, on the strength of the commendatory verses bearing his name, 
which were prefixed to Pope's collected poems; we have little doubt, 
however, that the property in them belongs to his son, whom we have 
already seen in the character of a versifier. Lord Harcourt became 
possessed by bequest of Lord Chief Justice Herbert's library, said to 
have been a very valuable collection, particularly in law books. 



LORD HARCOURT. 209 

which, amid the tranquil enjoyments of philosophic leisure, it 
affected to have abandoned the pursuit 

"To low ambition, and the pride of kings." 

The sudden death of George I. left Walpole's tenure of power 
for a time extremely precarious, and it seemed probable that his 
trusty adherent, Lord Harcourt, might again be driven into the 
ungenial climate of opposition. Scarcely had he time to find 
this apprehension groundless, and to pay his homage at the 
court of the new sovereign, before he was himself hurried from 
the scene by the same stern summons. On Sunday, the 23rd 
of July, 1727, as he was proceeding in his coach to visit Sir 
Robert Walpole at Chelsea, he was seized with a paralytic fit ; 
and although he recovered so far as to regain the power of speech, 
and was even considered by the physicians to be out of imme- 
diate danger, he survived only until the following Friday, when 
he expired at his house in Cavendish Square, in his 67th year. 
His remains were conveyed to the vault of his ancestors at Stan- 
ton Harcourt. 

The review we have taken of Lord Harcourt's public life 
furnishes the best estimate of his character. Of the vague 
praises of contemporary pamphleteers and poets, assiduously 
engaged in lauding those of their own party who had any thing 
to bestow, little account is to be made. A shrewd and not un- 
candid observer of character, who could at least have no personal 
prejudices or resentments to gratify by misrepresentation (Speak- 
er Onslow), while he speaks with high eulogy of Lord Harcourt's 
talents, pronounces a severe, but we can scarcely say an unjust, 
judgment on his principles and conduct : — " He was afterwards 
Lord Chancellor, with no character in any station but for his 
abilities, saving that of integrity in causes, which I never heard 
doubted. He had the greatest skill and power of speech of any 
man I ever knew in a public assembly." 

There exists, so far as we are aware, no printed work from 
Lord Harcourt's pen. Among the Harleian MSS. in the British 
Museum, there is a small quarto volume of about 500 pages, 
entitled in the Catalogue, " Sir Simon Harcourt's Common-Place 
Book for a Justice of Peace," and having the signature " Sim. 



210 LORD HARCOURT. 

Harcourt, 13 August, 1724," pasted into the first page,* evi- 
dently in tlie same handwriting with the manuscript itself. It 
consists of a collection of authorities on criminal law and prac- 
tice, arranged under alphabetical heads, after the manner of' 
Burn's Justice. Many of the titles, however, are left in blank, 
and not more than about a third of the whole volume is written 
through. Under the title "Alehouses," for instance, eight blank 
pages occur ; under *' Attainder," " Homicide," " Bastardy," 
(fee. six or seven ; and the whole appears a miscellaneous sort 
of compilation, without much attention to the arrangement of the 
subjects. In the same volume are bound up the charges to the 
Buckinghamshire grand jury, to which we have before referred. 
Lord Harcourt was thrice married. By his first wife, Re- 
becca, the daughter of a Mr. Clark, he had three sons, Simon, 
whose death we have already mentioned, and two others who 
died in their infancy ; and two daughters. By his other ladies 
he had no issue. He was succeeded in his titles and posses- 
sions by his grandson, who many years afterwards (Dec. 1st, 
1749) was advanced to an earldom. On the death of his grand- 
son, the last venerable aud gallant earl, without male issue, in 
the year 1830, all the honours of the family became extinct, and 
its possessions passed into the hands of the Vernons. In them, 
however, in compliance with his direction, the name of Har- 
court survives, and may yet possibly confer lustre upon a new 
line of nobility. 

* The date assigned to the MS. ia the Catalogue is 1705 ; the auto- 
graph date above mentioned was most probably transferred from some 
other document. 



LORD MACCLESFIELD, 



History, it has been often said, teaches no less by its warn- 
ings than by its examples. Fortunately for our country, the 
time has long been past when she had cause to fear the taint of 
judicial corruption poisoning the pure sources of justice, or the 
solicitations of personal ambition or aggrandizement casting their 
shadow over " the broad, pure, and open path" of the judges of 
England. Amid the multitudinous complaints of governmental 
and official abuses, and not least of the grievances inflicted by 
the law and its ministers, to which a thousand tongues and pens 
are daily giving currency, nt) voice is heard to breathe a whisper 
of imputation against the unblemished purity of the judicial 
ermine. While the ascendancy of public opinion excludes from 
the high places of the profession those among its members whose 
character or practice would have dishonoured it ; while the respon- 
sibility to public opinion — were no higher principle in action — 
secures the exercise of an unswerving integrity in those who 
have attained them, — the warning to be derived from the life of a 
Bacon or a Macclesfield can find no application. But though 
this is happily the case, the spectacle of great talents and a noble 
mind, overpowered by the temptations of a venal age, and be- 
trayed to reproach and uselessness, will scarcely be viewed with 
the less interest, because we may fear no longer to fall into the 
same condemnation. 

Thomas Parker, Earl of Macclesfield, was born on the 23rd 
of July, 1666, at the town of Leek, in Staffordshire, where his 
father, of the same name, was a practising attorney. He was 
descended from a junior branch of an ancient and respectable 
family, which had originally borne the name of Le Parker, 
traced its descent as far back at least as the reign of Richard H.,* 

* We find the name of Le Parker among the gentry who volunteered 



212 LORD MACCLESFIELD. 

and had at one period enjoyed a considerable estate in the coun- 
ties of Stafford and Derby. Of his early years or course of edu- 
cation we have no further account, than that he was sent at the 
usual age to perfect his studies at Trinity College, Cambridge ; 
which, however, if we may trust the accuracy of the " Graduati 
Cantabrigienses," he quitted without taking any degree. A copy 
of adulatory verses, addressed to him when Lord Chancellor by 
the poet-laureate Eusden (who was himself a fellow of Trinity), 
would lead us to infer, if poetical evidence commanded implicit 
credit, that he was not a litde distinguished as a university 
student: 

" Prophetic Granta, with a mother's joy, 
Saw greatness omened in the manly boy, 
Who madest thy studies thy beloved concern, 
Nor could she teach so fast as thou couldst learn. 
Still absent thee our groves and Muses mourn, 
Still sighing echoes the sad sound return, 
And Cam with tears supplies his streaming urn." 

That he was designed from an early age for the bar is manifest 
from the period of his admission to the Inner Temple, — 14th 
February, 1683, when he was not yet seventeen. Hutton, in 
his History of Derby, affirms that he practised for some 
years in that town as an attorney, and finally ceased to reside 
there only on his appointment to the chief-justiceship; a story 
disproved at once by the date of his call to the bar, as it appears 
on the records of the same Inn — 24th May, 1691, not many 
months after the expiration of the required term of studentship. 
It is very probable that he settled there in the outset as a pro- 
vincial counsel ; a personage so much less frequent in those days 
than at present, that the worthy antiquary may well be excused 
for his misconception. He proceeds to describe to us, with 
laudable preciseness, the dwelling occupied by our lawyer in the 
good town of Derby : " in Bridge-gate, at the foot of the bridge, 
in the house next the Three Crowns." On the Midland Cir- 
cuit, which Mr. Parker chose as the first field of his professional 
labours, his local connexions speedily introduced him to busi- 

to accompany Edward I., when Prince of Wales, to the Holy Land, in 
1270. — Excerpta Historica, p. 271. 



LORD MACCLESFIELD. 213 

ness ; nor was it very long before his reputation both as a lawyer 
and an advocate became so high, as to advance him to leading 
practice : such, indeed, were his powers of persuasive oratory, 
as to procure for him the appellation of the " silver-tongued 
counsel." It is not, howeverj until the firstyear of Queen Anne's 
reign (1702), that the occurrence of his name in the Reports 
leads us to conclude that he had transferred the exercise of his 
talents and attainments to the more conspicuous arena of the 
metropolitan courts : after that period it is frequently to be found, 
and almost always in connexion with cases of some importance 
and extent; — we may particularize, out of many, the elaborate 
legal defence of Tutchin, the obnoxious publisher of the Obser- 
vator (1704), and the case of Kendall v. John (1707), an action 
brought by a candidate, who was seated on petition, against the 
returning officer for a false return, — an experiment which 
doubtless grew out of the decision in the case of Ashby and 
White. 

At the period of the general election in 1705, when the 
Whig party, to which Parker had warmly attached himself, was 
almost universally successful, he had acquired sufficient local 
influence to be returned, in conjunction with a member of the 
Cavendish family, for the town of Derby, of which he had some 
years before been elected Recorder ; and this seat he retained 
without interruption until his elevation to the bench five years 
afterwards. The government had, about the same time, appa- 
rently discovered either his usefulness as a partisan or his claims 
as a lawyer; for in the month of June in the same year, he was 
at once called to the degree of the coif, and appointed Queen's 
Serjeant, and not long afterwards honoured with knighthood. 
What degree of reputation he acquired in parliament we have 
no means of judging from contemporary testimony ; for neither 
is he noticed on a single occasion as a speaker, in the meagre 
outlines which are preserved to us of the debates, nor, so far as 
our researches have informed us, is he made mention of by any 
of the annalists or reminiscents of his time : most probably his 
reputation as a lawyer was the chief distinction which attended 
him through his parliamentary as well as his professional career. 
The only occasion on which he is recorded as having conspicu- 
ously distinguished himself, was one much more of a forensic 



214 LORD MACCLESFIELD. 

than a parliamentary character: we mean llie impeachment of 
Sacheverell, against whom he was named, in conjunction with 
Walpole, Jekyll, Stanhope, King, &:c., one of the managers for 
the Commons. Burnet particularizes him as having acquitted him- 
self more ably than all these eminent colleagues ; a distinction 
the more remarkable, since it appears he was suffering under 
indisposition at the time. He was assigned to maintain the 
fourth article of the charge, which was by much the most gene- 
ral of them all, and alleged against the doctor that he had falsely 
charged the Queen and her functionaries, civil and ecclesiastical, 
with a general mal-administration, tending to the subversion of 
the constitution ; had excited her subjects to faction and violence, 
and, to serve these purposes, had wrested and perverted texts 
and passages of Scripture. To support these allegations it be- 
came the accuser's duty to dissect the obnoxious sermons para- 
graph by paragraph, and show their general character and design 
to be a virulent attack on all, in whatever station, who, however 
well-affected and obedient to the established sovereign and govern- 
ment, deemed the resistance of the Revolution lawful, and were 
not prepared to assert, for all future cases, the absolute doctrine 
of passive obedience : — a task which he undoubtedly performed 
with great force and effect. The scriptural passages which the 
doctor had pressed into his service, he showed to be perverted 
to a sense, in many cases, absolutely opposed to their true 
meaning : and he closed with a forcible denunciation against 
the abuse of the pulpit to factious and partisan purposes, which 
we transcribe as a specimen at once of his oratory and his ortho- 
doxy: 

"My Lords, the Commons have the greatest and justest vene- 
ration for the clergy of the Church of England, who are glorious 
through the whole Christian world for their preaching and writ- 
ing, for their steadiness to the Protestant religion when it was 
in the utmost danger. They look upon the order as a body of 
men that are the great instruments through whose assistance the 
Divine Providence conveys inestimable advantages to us all. 
They look upon the Church established here as the best afld 
surest bulwark against popery, and that therefore all respect and 
encouragement is due to the clergy ; and it is with regret and 
trouble that they find themselves obliged to bring before your 



LORD MACCLESFIELD. 215 

lordships, in this manner, one of that order. But when we con- 
sider Dr. Sacheverell stripping himself of all the becoming quali- 
ties proper for his order, nay, of all that peaceful and charitable 
temper which the Christian religion requires of all its professors, 
deserting the example of our Lord and Master and of his holy- 
Apostles, and with rancour and uncharitableness branding all 
who differ from him, though through ignorance, with the titles 
of hypocrites, rebels, traitors, devils; reviling them, exposing 
them, conducting them to hell, and leaving them there ; treating 
every man that falls in his way worse than Michael the arch- 
angel used the devil; coming himself more near the character in 
St. Jude, part of which he would apply to others, ' despising 
dominion, speaking evil of dignities, like raging waves of the sea 
foaming out his own shame;' forgetting (when his text and his 
doctrine led to it) to recommend the peace of the country, in a 
time when all Europe is in war, and nothing can preserve us 
from faUing into the hands of the grand enemy and oppressor, 
but our unanimity under her majesty ; then labouring to sap the 
establishment; and railing and declaiming against the govern- 
ment; crying to arms, and blowing a trumpet in Zion, to engage 
his country in sedition and tumult, and overthrow the best con- 
stitution and betray the best queen that ever made a nation 
happy ; and this with Scripture in his mouth ! 

" The Commons looked upon hini, by this behaviour, to have 
severed himself from all the rest of the clergy, and thought it 
their duty to bring to justice such a criminal ; and are in no fear 
of being thought discouragers of those who preach virtue and 
piety, because they, in the supreme court of justice, prosecute 
him who preaches sedition and rebellion; or to have any design 
to lessen the respect and honour that is due to the clergy, by 
bringing him to punishment that disgraces the order." 

In his reply, he inveighed with even greater warmth against 
the evasion and hypocrisy of the defence ; and thus noticed the 
doctor's own exhibition before his judges : — 

" My Lords, he has made an appearance before your lord- 
ships in a manner very extraordinary, not only as in a defence 
of a prosecution, but as in a most solemn act of devotion, before 
the most august judicature on earth, and appealing to a yet 



216 LORD MACCLESFIELD. 

greater in heaven. But with what sincerity, what candour, or 
what sense of that which he has done ? 

♦' I am amazed, that a person in holy orders, in his distin- 
guished habit, before this awful assembly, should dare to take 
the tremendous name of God into liis lips, and appeal to him for 
the sincerity and integrity of his heart, at that very lime when 
he stands charged with this black crime, and is neither able to 
repel it, nor has the sincerity and honesty to repent, — to take 
shame upon himself in the most public manner, and to ask par- 
don of God and the world for it. 

" But while he can thus, with such assurance as your lord- 
ships have seen, and now see, face out such a crime, and be 
equivocating and playing double with your lordships, with God 
Almighty, and his own conscience, what regard is to be had to 
his most solemn protestations ? His manifest insincerity in 
this plain point gives him no credit in anything; and his having 
taken the abjuration oath gives me not the least difficulty, after 
what I have observed of his more solemn oath before your lord- 
ships. 

"My Lords, the just veneration we owe to the Divine Ma- 
jesty (for the doctor's behaviour has now made that part of the 
case), the honour of Christianity, the Church, and its holy order, 
the security of the present establishment and the Protestant 
succession, the safety of her majesty's person, the quiet of her 
government, the duty we owe to her as sovereign, the gratitude 
for her most gracious administration, the honour of our prelates, 
the obligations we are under to prevent seditions and tumults, 
to undeceive the people, to quiet the minds of the Protestant 
Dissenters, and convince them the toleration allowed them by 
law is not to be taken away from them ; to secure at present, 
and transmit to our posterity, as far as in us lies, our religion 
and liberties, and vindicate the Revolution, which is the founda- 
tion on which they stand, and the glory of our late deliverer, to 
whom, under God, we owed it; and to banish sedition from the 
pulpit, which is, and ever ought to be, sacred to divine purposes, 
— require the Commons to demand your lordships' judgment on 
this offender." 

Li the course of this trial occurred the death of the Lord 



LORD MACCLESFIELD. 217 

Chief Justice Holt ; and the ministry lost no time in recom- 
mending as his successor the lawyer who had so pre-eminently 
vindicated the principles of their government, and had been 
so instrumental in calling down punishment upon an offender 
pohtically and personally so obnoxious to them. Sir Thomas 
was accordingly appointed without delay to the vacant office, 
and took his seat in the Court of Queen's Bench on the first day 
of the ensuing Easter 'i'erm. His elevation was hailed by the 
scribes of the Whig party as an additional triumph of their 
cause, and a pledge of the Queen's sincerity in upholding it. 
Defoe thus apostrophizes on the occasion of the "street gentry," 
as he terms them, — the High-Church mob who had formed the 
doctor's riotous retinue : — *' You are desired to take particular 
notice of her majesty having severely punished Sir Thomas 
Parker, one of the managers of the House of Commons, for his 
barbarous treatment of the doctor, in pretending in a long 
speech to show, as he called it, the impertinence and superficial 
jingle of the doctor's speech. Her majesty being, as you know, 
heartily concerned for this prosecution, hath testified her care of 
the doctor's character, in most justly punishing that forward 
gentleman, having condemned him for his boldness to perpetual 
confinement, being appointed to the constant drudgery of fiOrd 
Chief Justice of the Queen's Bench; a cruel and severe sen- 
tence indeed !" Lord Dartmouth indeed informs us, that the 
promotion (which, Tory as he was, he terms a wise and judi- 
cious one) was made to please the Duke of Somerset, who was 
too necessary at that time to be contradicted, " and had taken 
into his head that he could govern Parker, which nobody that 
knew either could believe." It would have been difficult, how- 
ever, to name a lawyer of Whig principles who had at that 
period higher professional as well as political claims to the ad- 
vancement ; and the vigour and ability which he applied to the 
discharge of his judicial functions well justified the choice. 

Almost the first duty imposed on him was that of presiding 
at the trials of Dammaree, Willis, and Purchase, the leaders of 
Sacheverell's mob, on a charge of constructive high treason, in 
designing the riotous demolition of a// dissenting meeting-houses 
within the realm ; — a wide principle of interpretation, which had 
only once before been clearly applied to the Statute of Treasons, 

15 



218 LORD MACCLESFIELD. 

in the case, namely, of the apprentices convicted and executed 
in the year 1680, as traitors hy levying war against the king in 
a general armed assault on all the brothels of the realm. Swift 
insinuates, in a somewhat uncanonical passage of his letter to 
Bishop Fleetwood, that these two objects of attack were not very 
unlikely to coincide : — " How pathetically does your lordship 
complain of the downfall of Whiggism, and Daniel Burgess's 
meeting-house ! The generous compassion your lordship has 
shown on this tragical occasion makes me believe your lordship 
will not be unaffected with an accident that had like to have 

befallen a poor w of my acquaintance about that time, who 

being big with whig was so alarmed at the rising of the mob, 
that she had like to have miscarried upon it ; for the logical jade 
presently concluded (and the inference was natural enough) that 
if they began with pulling down meeting-houses, it might end 
in demolishing those houses of pleasure where she constantly 
paid her devotions ; and indeed there seems a close connexion 
between extempore prayer and extempore love." The direc- 
tion given by the Chief Justice to the jury on Dammaree's trial, 
that it was a clear case of levying war, if they should find the 
prisoner guilty of aiding the attack at one of the meeting-houses, 
and thence leading and tempting the rioters to others, was held 
to be correct at a subsequent conference of all the judges, and 
the same doctrine has been promulgated as undoubted law by 
the principal text-writers since that period, in particular by Mr. 
Justice Foster ; though it has been strongly questioned also by 
lawyers of repute, especially by Mr. Luders, in an elaborate 
investigation into the general principles of the law of treason. 
No parallel case has since occurred, the enactments of the Riot 
Act, and subsequent statutes of the same class, having provided 
remedies more consonant with the milder spirit of our age, and 
more proportioned to the character and danger of such offences. 
The return of the Tories to power, which occurred within a 
itw months after Parker's advancement, mitigated in no degree 
the sternness of his Whiggism. There is reason to believe that 
an offer of the great seal was made to him by Harley, after his 
unavailing efforts to retain Lord Cowper in the possession of it ; 
and that he peremptorily refused, even for so high a prize, to- 
compromise his opinions or desert his party. We are not dis- 



LORD MACCLESFIELD. 219 

posed, however, to>ascribe so much honour as some have ren- 
dered to an act of self-denial such as this ; considerations of a 
much less heroic chararacter may suggest to the most worldly 
pohtician the danger of ascending, in a period of a warm con- 
flict between two great and not unequal parties, to a precarious 
eminence, on which he must sit associated with colleagues 
whose opinions and measures are in daily conflict with his own 
real sentiments; and for which, too, he must leave a post of 
almost equal honour, and of secure enjoyment. Certain it is, 
that Sir Thomas did not fail to launch all the rigours of the law 
against the Tory pamphleteers whose intemperance or person- 
ality brought them within its range. Swift, indeed, hin-ts that 
this zeal of prosecution was not ventured upon until there ap- 
peared (at the close of the year 1711) a strong probability of the 
breaking up of the Harleian ministry ; it was persevered in, 
however, long after that crisis had passed over. Among others, 
Morphew, the publisher of Swift's *' Conduct of the Allies" 
(against which the government had been obliged to make a show 
of displeasure, by oflering a reward for the discovery of the 
author), was summoned before the Chief Justice, threatened 
with severe punishment if he persisted in concealing the writer's 
name, and ultimately bound over to appear in the following 
term to answer a charge of seditious libel. The Dean repaid 
these proceedings, as might be supposed, with a hearty hatred. 
" I was to-day (he writes in his Journal to Stella, under the date 
of October 28, 1712) at a trial between Lord Lansdowne and 
Lord Carteret, two friends of mine, in the Queen's Bench. I 
sat under Lord Chief Justice Parker, and his pen falling down, 
I reached it up. He made me a low bow, and I was going to 
whisper him, that I had done good for evil, for he would have 
taken mine from me. Parker would not have known me, if 
several lords on the bench and in the court, bowing, had not 
turned every body's eyes, and set them a whispering. I owe 
the dog a spite, and will repay him in two months at farthest." 
Defoe, also, (whom we have seen celebrating Sir Thomas's ele- 
vation with such an exulting strain of Whig triumph, but who 
became, on the exaltation of the Tories, a retainer of their camp,) 
when he fell under the compelled prosecution of the government 
for the publication of his Jacobite letters, in 1713, found reason 



220 LORD MACCLESFIELD. 

to abate liis admiration of the Chief Justice's merits. When 
brought before him to be admitted to bail, Parker expressed, not 
very decorously, his gratification that the government had at 
length fallen foul of so notorious a libeller ; a compliment for 
which Defoe took vengeance in the two succeeding numbers of 
his " Review," in hearty vituperation of his lordship's conduct 
and opinions. 

Notwithstanding all these demonstrations of zeal in behalf of 
the cause of Whiggism, Sir Thomas did not wholly escape the 
imputation, which was levelled also, with about as much foun- 
dation, against Cowper and Murray, of having been a secret 
well-wisher to the designs of the exiled family. *' I would 
fain," says Swift, in the " Public Spirit of the Whigs," " ask 
one single person in the world one question — why he hath so 
often drank the abdicated king's health upon his knees ?" That 
he was not disposed to abate anything from the most rigorous 
construction of the laws which the fears of that age had deemed 
necessary for the preservation of Protestantism, was shown in a 
case which excited much interest at the time;* in which he 
stood alone in strenuous dissent from the opinions of Lord 
Chancellor Harcourt, and several of the other judges, as to the 
interpretation of the recent statute (11 & 12 W. 3, c. 4) dis- 
abling papists from acquiring real estate by purchase. His 
opinion, that the word purchase was used in its legal sense, as 
contradistinguished from a succession by descent, and therefore 
comprehended a taking by devise (notwithstanding a former sec- 
tion, which expressly excluded non-conforming papists above the 
age of eighteen from taking by " descent, devise, or limitation"), 
was subsequently maintained by him with equal determination 
when the case was brought by appeal to the House of Lords, 
and was affirmed by a great majority of the peers, and by the 
opinions of six judges to five. Speaker Onslow informs us 
that he got great credit by his argument, " with some reflections 
upon the Chancellor, ^vhose construction would in effect have 
made the act useless by an easy evasion of it." Nor did he in 
his place at the council-table disguise his opinions on the policy, 
foreign or domestic, of the government. He offered all the re- 

* Roper V. Ratcliffe, 9 Mod. 167, 18J ; 10 Mod. 230 ; I Bro. P. C. 
450. 



LORD MACCLESFIELD. 221 

sistance which his individual voice could oppose to the measures 
of pacification which terminated in the treaty of Utrecht. We 
have mentioned in a former memoir the pains he took to defeat 
a scheme of which Lord Chancellor Harcourt was made the 
instrument, whose object was to prevent the security provided 
by the Regency Act for the Hanoverian succession, by the ap- 
pointment of regents nominated by the Elector, from being 
made legally available. Of the regents so appointed, the Chief 
Justice was of course one. It was not, however, until some 
time after the accession of the new sovereign that he received 
any testimony of court favour. On the 10th of March, 1716, 
he was elevated to the peerage, with the title of Lord Parker, 
Baron of Macclesfield. The preamble of his patent informs us, 
and we find it also affirmed by a contemporary writer, that it 
was in consequence of his own reluctance to assume the dignity 
that he had not been earlier ennobled : but it is probable that the 
expressions to that effect in the former constituted only the usual 
laudatory garnish of such instruments, and were all that gave 
occasion to the statement of the latter. In point of fortune, the 
emoluments of his office were at that period, more amply than 
at present, adequate to the fulfilment of all the duties, and the 
maintenance of all the necessary splendour, of his new dignity. 
He received, however, in augmentation of them, a life pension 
of ^61200 a year. 

Li the proceedings of the upper, as formerly in the lower, 
House of Parliament, he appears, so far as can be gathered 
from the imperfect records remaining to us, to have taken no 
frequent or conspicuous part. Indeed, almost the only occasion 
on which we find him named as a speaker, is in resistance to the 
proposition of Lord Harcourt, in the course of Lord Oxford's 
impeachment, which sought to sever those articles of the charge 
that amounted to an allegation of hiirh treason from those which 
accused him only of high crimes and misdemeanors, and to enter 
upon the former in the first instance. The hardship was urged, 
of subjecting the Earl to a long and harassing inquiry in the 
odious character of a traitor, when he might ultimately be found 
guilty, if at all, of ofl^ences of a much less aggravated character. 
To this the Chief Justice replied — he was little aware how 
nearly his words would one day receive an application in his 



222 LORD MACCLESFIELD. 

own case — that " as for the prisoner's appearing in the abject 
condition of a traitor, it was only a piece of formality, which 
did him no manner of hurt, and to which persons of the highest 
rank had ever submitted, in order to clear their innocence." 

If his legislatorial career furnishes few incidents to dwell upon, 
neither does his character or conduct as a common-law judge 
afford much ground of comment. Little can be said of him in 
his capacity of Chief Justice, more than that he executed its 
duties with seriousness, temperance, and firmness ; bringing to 
the discharge of them, — if not the intellectual elevation, and im- 
moveable disdain of external influences, which had obtained for 
his great predecessor the admiration and reverence of his country, 
— an acute understanding, a mind well stored with legal princi- 
ples and professional knowledge, and a capacity and disposition 
(so far as we can judge from his determinations) to apply them 
rightly and honestly. The cases of Dammaree and his fellow 
rioters of 1710 were the only trials for high state offences over 
which it fell to his lot to preside : but in such other criminal 
cases tried before him as we have any account of, we find him 
represented as manifesting all the fairness and patience towards 
the accused that could be desired ; exhibiting in this respect a 
worthy imitation of the admirable example of his predecessor, 
from which, indeed, only the ignorant brutahty of a Page could 
retain the bold baseness to relapse. 

In the spring of 1718, the final retirement of Lord Cowper 
from the chancellorship again opened the way to that unsteady 
pinnacle of legal ambition. After an interval of a few weeks, 
during which the seals were in the hands of commissioners, they 
were committed (May 12) to the keeping of the Chief Justice, 
with the title of Lord Chancellor. He now accepted them with- 
out much difficulty or reluctance : their tenure appeared, indeed, 
considerably less precarious than when he formerly declined the 
dangerous or unwelcome dignity. The contest for power now 
lay mainly between the two sections of the Whig party, differing 
indeed widely enough on individual points of policy, but profess- 
ing the same general principles of civil and ecclesiastical admin- 
istration : he might therefore hope, by a course of discreet mode- 
ration, and without any vehement offence to his opinions or his 
conscience, to retain the good things of office whichever of the 



LORD MACCLESFIELD. 22S 

scales of party was depressed, whether Stanhope or Walpole 
kicked the beam. We find, accordingly, that when the latter 
regained his ascendancy, the Chancellor had no difiiculty in 
acting along with him, as comfortably, and perhaps as cordially, 
as with tlie statesmen he had displaced. We shall see in the 
result, that there were even weightier reasons than have usually 
influenced the occupiers of that seat, to dissuade him from quit- 
ting it except upon the most immitigable necessity. 

Almost the last judicial act of Lord Parker, in his office of 
Chief Justice, was to pronounce upon the important question 
then at issue between George I. and his son, in which of them 
lay the right of guardianship, and the control over the education and 
marriage of the younger branches of the royal family ; the prince 
claiming those rights in his paternal, the sovereign in his kingly, 
character. The judges differed on the question ; ten of them, 
however, with Parker at their head, and considerably influenced, 
it was said, by his arguments and authority, certified their un- 
qualified opinion that all the contested rights were vested by law 
in the crown : a decision by which he purchased, and in the end 
bitterly experienced, the persevering enmity of the prince. The 
same question, however, many years afterwards, when the Royal 
Marriage Act was under the consideration of the legislature, 
received the same determination from the concurrent opinion of 
all the judges. 

The decisions of Lord Macclesfield (we anticipate somewhat 
in giving him the title by which he is best known) in the Court 
of Chancery, have ever since commanded an authority second 
only to that of the most illustrious judges who have filled the 
seat of equity — of a Hardwicke or an Eldon. They appear to 
have been held in no less consideration in his own time : we have 
looked through the Reports of Peere Williams, which compre- 
hend a regular series of all the more important cases heard before 
him during the seven years of his chancellorship, and find 
scarcely a single instance of a successful appeal from his judg- 
ment to the House of Lords.* This is a testimony to his 

* It may deserve notice, that he was the first judge who asserted the 
jurisdiction of the Court of Chancery to interfere with the parental con 
trol over the child, in a case where the parent was living. Eyre v. 
Countess of Shaftesbury, 2 P. Wms. 118. 



224> LORD MACCLESFIELD 

accuracy of understanding, familiarity with legal principles, and 
devotion to his duties, the more unquestionable, because his 
studies and practice at the bar could scarcely have prepared or 
qualified him for the administration of equity. In his judicial 
fitness for his seat, indeed, he excelled rather than fell short of 
his predecessor,^ whom he somewhat too flatteringly panegyrized 
as " that great master of equity ;" — his personal deportment 
towards the practitioners of his court afforded them less reason to 
be gratified with the change. The undisguised favouritism which 
he displayed towards some of them, more particularly the all- 
fortunate Sir Philip Yorke, and the petulance which he too often 
directed towards counsel less in his good graces, contrasted un- 
happily with the graceful and dignified amenity of Lord Cowper, 
and raised him up enemies within the walls of his court, whose 
hostility he was doomed to experience to his cost. 

Whomsoever else he might have the fortune to displease, the 
Chancellor had been lucky enough to secure to himself no small 
portion of the royal favour, which heaped upon him increase of 
honour and aggrandizement almost without stint. In 1719, he 
was nominated Lord Lieutenant of Warwickshire, and also, 

* The Dake of Wharton, nevertheless, in that witty brochure referred 
to in another part of this volume, (Life of Lord Hardwicke, j^os/,) does 
not scruple to include in the catalogue of impossibilities, on the hap- 
pening of which he engages that he will 

" cease his charmer to adore, 
" And think of love and politics no more," 
the occasion " when Parker shall pronounce one right decree." He 
did not, indeed, do the Chancellor the discourtesy of leaving him alone 
on the bad eminence of ignorance or dishonesty to which he had exalted 
him ; he disparages no less the understanding and character of the two 
chief justices, Pratt and King. Lord Macclesfield was how^ever evi- 
dently regarded with extreme dislike by the duke, who, in one of the 
numbers of his " True Briton," even draws a covert parallel between 
him and Jefferies (anticipating therein the more elaborate hostility of 
a periodical of much greater pretensions against a chancellor of later 
days) for covetousness, ambition, party spirit, anger, and peevishness ; 
and expresses his surprise, still under a pretended allusion to Jefferies, 
that the gentlemen of the bar " should have suffered themselves to be 
so overrun by him." Wharton's name is to be found at the head of the 
dissentient peers who had sought to aggravate Lord Macclesfield's pun. 
ishment on his impeachment. 



LORD MACCLESFIELD. 225 

m 

within a few months afterwards, of Oxfordshire, in which latter 
county he had purchased the old castellated mansion of Shir- 
bourn, near Watlington, with a small circumjacent property ; 
and in November 1721, he was advanced to the honours of a 
Viscount and Earl, by the titles of Viscount Parker, of Ewelme, 
in Oxfordshire, and Earl of Macclesfield, with remainder, in 
failure of his direct male issue, to that of his only daughter, the 
wife of a Hampshire baronet. Sir William Heathcote. At the 
period of his elevation to the woolsack, the reversion of a Teller- 
ship of the Exchequer had been secured to his son, with a 
pension of ^61200 until it should fall into possession ; and he 
himself had then received from the bounty of the Crown, in 
addition to his former pension, a gift of a gross sum of £14,000, 
(the accustomed outfit of the Great Seal being £2000,) together 
with an annual allowance of £4000 in augmentation of the ordi- 
nary emoluments of his office. His lordship did not repay this 
profuseness of favour by any very zealous furtherance of the 
measures of the government: in all the important questions 
which at this period occupied the consideration of Parliament, 
we find the administration in which he filled so prominent a sta- 
tion obtaining far less frequent or active support at his hands, 
than it received from the purchased advocacy of the renegade 
Tory, Harcourt. Nor did the minister, on his part, make any 
troublesome effort to avert or soften the fall of so unserviceable 
a colleague, when the storm of popular indignation burst over 
his head. To that unhappy period of his history the course of 
our narrative now leads us. 

Shortly after the lamentable and ruinous catastrophe of the 
South Sea frauds, whispers had begun to circulate of deficien- 
cies in the funds of the suitors in equity, in the hands of tiie 
Masters in Chancery ;* one of them, Mr. Dormer, had specu- 
lated in that stock to a desperate extent, and had applied, as 
afterwards appeared, the suitors' money in payment of losses to 
the amount of more than thirty thousand pounds. It was not 
for some time that these rumours assumed any distinct shape of 

* Up to this period the usage was, when an order was made to depo- 
sit any sum of money in a cause, for the Chancellor to direct it to 
be paid into the hands of the Master in Chancery whose turn it was 
to be in court at the time. 



226 LORD MACCLESFIELD. 

accusation or inquiry, or involved the Chancellor himself in 
any suspicion of corrupt or irregular practices. They became 
at length, however, so loud and general, as to convince him 
(after several vain attempts to solder up the grievance, or dis- 
guise its extent) of the impossibility of retaining his office in 
the face of them, either with any satisfaction to the country, or 
with safety to himself. Accordingly, in January, 1724-5, he 
surrendered the great seal into the reluctant hands of the King, 
and it was transferred to the hands of Sir Joseph Jekyll, the 
Master of the Rolls, Mr. Baron Gilbert, and Mr. Justice Ray- 
mond, with a special injunction to take into their immediate 
consideration the accounts of the defaulting Masters, and the 
means of making restitution to the despoiled suitors. But the 
Chancellor was not permitted to fall so sofdy as he had hoped. 
The party of Leicester House were now supplied with an ample 
opportunity of at once inflicting annoyance on the Court, and 
gratifying the resentment of their master, and that under the 
specious and popular guise of patriotic attack upon corruption 
and mal-administration in the highest judicial office. In an age 
when political venality was all but universal — when the sale of 
ministerial favour and public employment (not to speak of the 
purchase of political character) was so flagrant and shameless, 
that, as the Duchess of Marlborough assures us, "no person 
who was in any office at Court, with places at his disposal, 
made any more scruple of selling them, than of receiving his 
settled salary or the rents of his estate," — it would be ridiculous 
to attribute to the eloquent invective which was poured out upon 
the misdeeds of Lord Macclesfield, much inbred purity of patri- 
otism, or affectionate reverence for the sanctity of justice. But 
litde as we may see cause to respect the motives which influ- 
enced his prosecution, we cannot therefore question either its 
justice or its fitness. It was high time to cleanse the fountain 
of equity of some portion at least — the worst and most off'ensive 
—-of the impurity and rankness which had so long been gather- 
ing over it, and fitting to visit with an exemplary chastisement 
the reckless cupidity, the criminal and interested negligence, 
which to the old evils of delay, expense, extortion, and uncer- 
tainty, had added that of wholesale and ruinous spoliation. But 
we are anticipating the order of our narrative. 



I 



LORD MACCLESFIELD. 221 

Lord Macclesfield's resignation of the seals took place on the 
4th of January. On the 23rd, the presentation to the House of 
Commons of a petition from the Earl of Oxford and Lord Mor- 
peth, as guardians of the person and estates of the Duchess 
Dowager of Montagu, a lunatic, complaining of a heavy defi- 
ciency in monies belonging to her estate in the hands of one of 
the Masters in Chancery, gave occasion to a long debate, in the 
course of which much severe animadversion was cast on the 
conduct of the ex Chancellor. It was ultimately adjourned, for 
further and still more serious consideration, to the 12th of Feb- 
ruary ; the purpose being, as was manifest from the result, to 
concert the plan of some proceeding direcdy criminatory of the 
Earl of Macclesfield. On that day, accordingly, after reading 
certain Reports from a Committee of the Privy Council which 
had been appointed to examine into the subject, Sir George 
Oxenden, an influential member of the prince's party, concluded 
a highly accusatory speech, the charges of which he founded 
upon the statements of the Reports, by moving to impeach the 
Earl of high crimes and misdemeanors in his office of Chancel- 
lor. His delinquencies, he said, were many and of various 
natures, but might be resolved into three heads; first, that he 
had taken into his own hands the estates and efl!(ects of many 
widows, orphans, and lunatics, and either had disposed of part 
of them arbitrarily to his own profit, or connived at the officers 
under him making advantage of them ; secondly, that he had 
raised to an exorbitant price* the offices and places of the Mas- 
ters in Chancery, and, in order to enable them to pay him those 
high prices and gratuities for their admission, had trusted in 
their hands large sums of money belonging to suitors in Chan- 
cery ; and thirdly, that in several cases he had made divers 
irregular orders. " So that," the orator concluded, " in his 
opinion, that first magistrate in the kingdom was fallen from the 
height of the dignities and honours to which he had been raised 
by the King's royal bounty and favour, to the depth of infamy 
and disgrace." The motion having been warmly supported by 

* The absolute illegality of the receipt of money on the appointment 
to the office M-as not therefore, at this stage of the proceedings, alleged 
against him. 



228 LORD MACCLESFIELD. 

several members of the same parly (among whom was that 
mirror of political purity, Doddington, then one of the Lords of 
the Treasury), the government, not venturing in the present 
aspect of the subject to give it their unqualified resistance, made 
a half show of opposition, in a proposal to refer the whole matter 
anew to a Select Committee ; Pulteney, who then filled the 
office of cofferer of the household, alleging that it was derogatory 
to the dignity and prerogative of the House to found an impeach- 
ment upon the Reports, without a previous examination into the 
proofs that were to support it. This motion, however, was even 
opposed by several subordinate members of the government, and 
the impeachment was carried by a majority of 273 votes to 
164 : and in pursuance of that resolution. Sir George Oxenden, 
on the following day, solemnly impeached the Earl at the bar 
of the House of Lords. 

Walpole, though he bore no great love to his displaced col- 
league, on the score of " several ministerial passages," had no 
anxiety to see the weapon of parliamentary impeachment against 
obnoxious ministers leave the sheath too often, nor desired to 
risk, by too ready a participation in the proceedings, the displea- 
sure of his royal master, in whose good graces he knew the 
Earl to stand as high as ever ; he found, however, that the cur- 
rent of popular feeling set too strongly against the reputed author 
of so many abuses, for him to oppose it with safety or credit, 
and persuaded the king of the necessity of giving the proceed- 
ings the concurrence of the government. Out of doors (to adopt 
the parliamentary phrase) the impeachment was of course abun- 
dantly popular, as aiming a bold assault against corruption in 
high places, avenging the wrongs of the oppressed and despoiled, 
wounding the personal feelings of an unpopular sovereign, and 
exhibiting the public virtue and disinterested sympathies of the 
representatives of the people. The press did not fail to dis- 
charge its daily shower of obloquy upon the great delinquent; 
he was even classed in the same catalogue with the cutpurse 
heroes of the Newgate Calendar ; Staffordshire, it was said, had 
produced three of the greatest rogues that ever existed — Jack 
Sheppard, Jonathan Wild, and Lord Chancellor Macclesfield ; 
and the same exalted fate which had rewarded the public labours 
of the two former worthies, was not very obscurely indicated as 



* LORD MACCLESFIELD. 229 

the fitting recompense of his. Amid this tempest of popular 
outcry, on the 18th of March, the articles of impeachment were 
reported to the House of Commons from the committee appoint- 
ed to draw them up. It appeared that two of them related to 
offences alleged to have been committed before the Act of In- 
demnity passed in 1721 ; a circumstance of which the Earl's 
friends, Sir PhiUp Yorke among the number, endeavoured to 
avail themselves to obtain the recommittal of the articles, and at 
least to thrust off for a while the evil day. Serjeant Pengelly 
and the Solicitor-General, Sir Clement Wearg, two of the Chan- 
cery practitioners least friendly to their late chief, strongly 
resisted this proposition, insisting that the indemnity applied only 
to offences against the crown; and their opinion was backed by 
so large a majority of the House, that the motion for recommittal 
was abandoned, and the articles were read and adopted, and pre- 
sently afterwards delivered at the bar of the House of Lords. 
They were twenty-one in number, headed by a preamble which 
set forth the favours and dignities which had been heaped upon 
the accused, and the oath he had taken duly to administer his 
office, and " well and truly to serve the king and his people, poor 
and rich, after the laws and usages of the realm ;" and were redu- 
cible to five distinct heads of accusation. The first ten charged 
the impeached Earl with specific acts of corruption, in the admis- 
sion to their offices of divers Masters in Chancery,* from one of 
whom he was alleged to have extorted, as the price of his appoint- 
ment, no less a sum than ^6000 ; from two others the sum of five 
thousand guineas each ; and from the rest, different sums varying 
in amount from eight to fifteen hundred guineas : aggravated in 
one instance by the circumstances, that the Master in whose room 
the corrupt appointment was made had died insolvent, deeply in 
debt to the suitors of the Court, and that the ofl[ice was trafficked 
for without any provision for securing the satisfaction of those 
debts. The eleventh and twelfth articles charged him with admit- 
ting to the office of Master, for the purpose of increasing his corrupt 
profit from the sale of their places, persons of inconsiderable sub- 

* With the exception of the ninth, which charged him with demand- 
ing and receiving a sum of a hundred guineas from one of the Masters, 
on his transfer of an office he had previously held — the Clerkship of 
the Custodies. 



230 LOUD MACCLESFIELD. 

stance and credit, altogether unfit to be entrusted with such a 
responsibility, and falsely representing them as persons of ade- 
quate respectability and fortune ; and with conniving at the 
payment of the purchase-money of their offices out of the suitors' 
monies transferred to their hands, whereby the price of their 
admissions was grossly enhanced, and persons of litde property 
or credit were encouraged to contract for the purchase of a 
lucrative place, upon the prospect of so easy a method of raising 
the purchase-money, and great deficiencies had in consequence 
been incurred, and extensive embezzlements practised, in the 
offices of several of the Masters so admitted. The seven follow- 
ing articles accused him of various practices and artifices for the 
purpose of evading the discovery of and inquiry into these defal- 
cations, especially with attempting to compel the Masters to 
raise among them money to cover the immediate demands of the 
suitors who pressed for a settlement of their claims, refusing to 
adopt plans proposed to him for the future security of the funds, 
and inducing several of the Masters to support each other in 
false representations of their ability and credit, so as to set up a 
colourable answer to the inquiry directed by the crown into the 
state of their accounts, and prevent, if possible, a parliamentary 
investigation. The twentieth article charged him with borrow- 
ing of the Masters for his own use large sums out of the suitors' 
monies ; and the last made a particular charge against him of a 
corrupt and improper appointment of the receiver of the estates 
of an infant heir, to the exclusion of the receiver nominated by 
tiie testamentary guardian, and in contravention of the statute of 
Charles II. abolishing the court of wards and liveries. 

After the lapse of a few weeks, the Earl presented to the 
House of Lords his answer to the articles of impeachment. 
After acknowledging the favours bestowed upon him by the 
crown, and setting forth in terms his oath of office, he went on 
to declare that " during his continuance in the office of Lord 
Chancellor, he never once had a design, or view, or wish, to 
raise to himself any exorbitant gain or profit, much less used or 
even thought of using any unjust or oppressive methods to extort 
or obtain any sum whatsoever, as in the said articles was sug- 
gested; but such views and practices were inconsistent with the 
whole tenor of his life and actions ; and that in case it should be 



LORD MACCLESFIELD. 231 

thought proper to lay before their lordships an account of his 
estate and fortune, and of the considerable sums of money he had 
distributed for the relief of others, it would appear that he was 
not such a designing, avaricious, and oppressive man, as in the 
said articles he was represented." By w^ay of general answer 
to the charges relating to the receipt of money on the admission 
to the office of Master, he first alleged the long usage to receive 
such presents, which had ever been reckoned among the ancient 
and known perquisites of the Great Seal, and the acceptance of 
them notorious to all the world, and never before considered or 
complained of as criminal; and that, "as he humbly hoped," 
the giving or receiving of a present on such occasions was not 
criminal in itself, or prohibited by common law or statute. He 
then proceeded to answer to each of those articles, that the sums 
received were freely and voluntarily given ; that in two instances, 
on a subsequent representation from the masters who had paid 
them that they were thereby disabled from answering so much 
of the balances due from them to the suitors, he had delivered 
the money over in open court to be applied for the suitors' bene- 
fit; and that of one of the sums of five thousand guineas so pre- 
sented toTiim he had retained no more than $1850. To the articles 
charging him with the appointment of persons of insufficient 
ability for the proper discharge of the office, and witli connivance 
at the practice of paying for their places out of the suitors' funds, 
he gave little more than a general denial. To the next class of 
charges he replied with a protestation of his belief that Dormer's 
deficiency would in due time have been made good ; that the 
plans of administering the funds which had been proposed to 
him had been rejected, as being, some impracticable, some in- 
sufficient, some inconsistent with the complete regulation he had 
it in view to establish : he denied that he had entertained any 
design or expectation of evading inquiry ; asserted that it was on 
his own application that the crown had deputed a committee of 
the Privy Council to inquire into the accounts, in order to the 
establishment of such regulations as might tend to the honour of 
the Court and the advantage of the suitors ; that believing the 
representations of the Masters to be true, that they had effects 
sufficient to answer their whole balances, he had advised them 
so to declare before the Commitiee, and told them " that at a 



2S2 LORD MACCLESFIELD. 

time when so many mouths were open against them as insolvent, 
it woiikl be for their honour and interest to make it appear that 
they were able and sufficient, as he believed them to be," and 
had suggested that some of their own brethren might supply 
them with money for the purpose, till they could raise it some 
other way : but was in no respect privy to any purpose of exhi- 
biting a false show of their ability or credit. He gave also 
specific answers to the charges of the two last articles : upon 
them, however, no evidence was given by his prosecutors. Lastly, 
he insisted on the benefit of the Act of Indemnity as to any of 
the alleged offences committed before its passing. The Com- 
mons replied in general terms, that although the answer was so 
evasive, inconsistent, and contradictory, that they might upon 
the face of it demand judgment forthwith, they were ready not- 
withstanding at the time appointed to maintain their charge by 
evidence, and demonstrate the guilt of the accused of the high 
crimes alleged against him. 

After an ineffectual attempt on the part of some of the Peers 
most hostile to the Earl, to have the place of trial the more 
public and accustomed area of Westminster Hall, it was ap- 
pointed to take place at the bar of the House of Lords, on the 
following 6th of May. The managers named to conduct the 
prosecution on the part of the Commons were no fewer than 
nineteen — the most conspicuous names among them being those 
of Sir George Oxenden, Sir Clement Wearg, Sir Thomas Pen- 
gelly, Onslow (afterwards Speaker), Doddington, Sandys, &c. 
— Sir Philip Yorke, then Attorney-General, with difficulty ob- 
tained a remission from the painful employment of prosecuting 
his intimate friend and most constant patron. The counsel as- 
signed to the Earl at his request were Mr. Serjeant Probyn 
(afterwards Chief Baron of the Exchequer), Dr. Sayer, Mr. 
Lingard (Common Serjeant), Mr. Robbins, and Mr. Strange, 
afterwards Master of the Rolls. On the day appointed, the 
trial accordingly commenced with all the solemn and dignified 
pomp of a parliamentary impeachment. The charge having 
been opened generally by Sir George Oxenden and the Solicitor- 
General, and proof given of the administration to the Earl of the 
oaths of a Privy-Councillor and Chancellor, of the value of his 
office, and the duties and official income of the Masters in Chan- 



LORD MACCLESFIELD. 2SS 

eery, the managers proceeded to adduce evidence to support the 
specific charges of corruption in the appointments of those offi- 
cers ; the Solicitor- General and Serjeant Pengelly assuming the 
chief conduct of the evidence on the part of the Commons, and 
the Earl assisting and frequently directing the examinations and 
objections of his counsel, with great acuteness and self-posses- 
sion. Without entering into any detail of the evidence, which 
was supplied, under the protection of an Act of Indemnity, 
principally from the mouths of the offending Masters themselves, 
it is enough to say that upon these as well as the other articles 
of charge, it went to an extent which inferred a heavy amount of 
criminality, both of commission and omission, against the noble 
defendant. It was shown but too satisfactorily, that through his 
secretary, a Mr. Peter Cottingham, his great agent in this un- 
worthy traffic, he had demanded from many of the Masters — 
had bargained, stood out, and haggled for — grossly exorbitant 
sums for his own use, as the condition of the transfer to them of 
their offices ; that these sums, as well as those paid to the re- 
tiring Masters as the direct price of the office, were in almost 
every instance either deducted or replaced out of the suitors' 
monies ; that although this system of peculation went on for 
such a length of time, and was conducted under such circum- 
stances, as must of necessity have brought it to the knowledge 
of the Chancellor, he took no measures to reform or restrain 
the abuse, but permitted it to go on for his own interested pur- 
poses ; that needy persons had in more instances than one been 
thus encouraged to bid for, and had obtained the office, in whose 
accounts heavy defalcations had in consequence taken place; 
that on the apprehended inquiry into these deficiencies, he had 
used every effort to conceal the desperate nature of the case, to 
persuade the Masters into a mutual contribution to stop the 
most immediate and pressing sources of complaint, and stave 
ofF a parliamentary investigation, which, as he told them, " he 
could not say how far it might afTect hith, but would afl!ect them 
much more ;" and that, on the inquiry before the Privy Coun- 
cil, repeated attempts were made both by Cottingham and Lord 
Macclesfield himself to induce them to assist each other with 
money, or obtain it by loan from the goldsmiths, to make a 
show of sufficient assets for the satisfaction of the balances. 

16 



234 



LORD MACCLESFIELD. 



» 



We transcribe a passage or two from the evidence of the Mas- 
ters in Chancery, which exhibit an amusing picture, if it were 
not so miserably degrading, of these respectable dealings. The 
first narrator is Mr. Tliomas Bennet, appointed in June, 1723. 

"I applied to Mr. Cottingham, and desired that he would 
acquaint my Lord Chancellor I had agreed with Mr. Hiccocks 
to succeed him in his office, and desired him to let me know my 
Lord Chancellor's thoughts, whether he approved of me to suc- 
ceed Mr. Hiccocks. Soon after that, I believe the next day or 
a day after, he met me, and told me he had acquainted my lord 
with the message I sent ; he said my lord expressed himself 
with a great deal of respect for my father, Mr. Serjeant Bennet, 
and that he was glad of this opportunity to do me a favour and 
kindness, and that he had no objection in the world to me ; that 
was the answer Mr. Cottingham returned ; he then mentioned 
that there was a present expected, and he did not doubt but I 
knew that ; I answered, I had heard there was, and I was willing 
to do what was usual ; I desired to know what would be ex- 
pected ; he said he would name no sum, and he had the less 
reason to name a sum to me, because I had a brother a Master, 
and I was well acquainted with Mr. Godfrey, who had recom- 
mended me, and I might apply to them, and they would tell me 
what was proper for me to offer. I told him I would consult 
them ; accordingly I did, and I returned to Mr. Cottingham, and 
told him I had talked with them about it, and their opinion was 
a thousand pounds (but I beheve I said I would not stand for 
guineas) was sufficient for me to offer. Upon this, Mr. Cotting- 
ham shook his head, and said, that won't do, Mr. Bennet, you 
must be better advised ; why, said I, won't that do, I think it is 
a noble present ; says he, a great deal more has been given ; 
says I, I am sure my brother did not give so much, nor Mr. 
Godfrey ; and those persons you advised me to consult with 
told me it was sufficient, and I desire you to acquaint my lord 
with the proposal ; says he, I don't care to go with that proposal, 
you may find somebody else to go ; says I, I don't know whom 
to apply to ; says he further, sure, Mr. Bennet, you won't go 
to lower the price, (these were his very words, at least I am 
sure that was the meaning of them,) I can assure you Mr. 
Kynaston gave 1500 guineas. I said, that was three or four 



LORD MACCLESFIELD. 235 

years ago, and since that time there have been several occasions 
of lowering the prices ; the fall of stock hath lowered the value 
of money ; and I think I mentioned Dormer's deficiency, and I 
did not know what the consequence of that might be ; and there- 
fore I thought, at this time of day, when stock and everythiiig 
was fallen, 1000 guineas was more now than 1500 when Mr. 
Kynaston gave it. He still insisted he did not care to go with 
that message. Says I, only acquaint my lord with it, and if he 
insists upon more, I will consider of it ; says he, there is no 
haggling with my lord ; if you refuse it, I don't know the con- 
sequence ; he may resent it so far as not to admit you at all, 
and you may lose the office. Then I began to consider, and was 
loth to lose the office, and told him I would give ^1500; he 
said Mr. Kynaston had given guineas. Then I asked whether 
it must be in gold ; he said, in what you will, so it he guineas. 
In a day or two after, he came and told me that my lord was 
pleased to accept of me, and he should admit me as soon as op- 
portunity served, and he would give me notice. Accordingly, 
on the first of June, he sent and desired me to come immedi- 
ately, and to come alone, and bring nobody with me, for my 
lord would swear me in that morning. Accordingly I went, 
and the first question Mr. Cottingham asked me M'as, if I had 
brought the money ? I told him to be sure, I should not come 
without it. He asked what it was in ? I told him in bank bills, 
one of £1000, and the other £575. He took them up and car- 
ried them to my lord : he returned back, and told me my lord 
was ready to admit me. I was carried up stairs, and then sworn 
in in his bed-chamber." 

This same worthy gentleman admits, in another part of his 
evidence, that when appointed he was a younger brother with 
an income of £250 a year or thereabouts, and that he had not 
bought the place had it not been for the cash of the suitors. 
The next witness was another master, Mr. Elde, who gives a 
no less graphic account of the negotiation upon his admission. 
Hearing of the vacancy of one of the offices, he waits upon the 
Chancellor to solicit the appointment : — 

" His lordship said he had no manner of objection to me, he 
had known me a considerable time, and he believed I should 



2'36 LORD MACCLESFIELD. 

make a good officer. He desired me to consider of if, and 
come to him again, and I did so. I went back from liis lordship, 
and came again in a day or two, and told him I had considered 
of it, and desired to know if his lordship would admit me, and I 
would make him a present of £4000 or iJ5000 ; I cannot say 
which of the two I said, but I believe it was £5000. My lord 
said, thee and I, or you and I (my lord was pleased to treat me 
as a friend), must not make bargains. He said if I was desirous 
of having the office, he would treat with me in a different man- 
ner than he would with any man living. I made no further ap- 
plication at all, but spoke to Mr. Cottingham, meeting him in 
Westminster Hall, and told him I had been at my lord's, and 
ray lord was pleased to speak very kindly to me, and 1 had 
proposed to give him £5000. Mr. Cottingham answered, 
gidneas are handsomer [he had, it is plain, a true professional 

distaste for pounds'] I immediately went to my lord's : 

I was willing to get into the office as soon as I could. I did 
carry with me 5000 guineas in gold and bank notes. I had the 
money in my chambers, but could not tell how to convey it ; it 
was a great burthen and weight ; but recollecting I had a basket 
in my chamber, I put the guineas into the basket and the notes 
with them. I went in a chair and took the basket with me in 
my chair. When I came to my lord's house, I saw Mr. Cot- 
tingham there, and I gave him the basket, and desired him to 
carry it up to my lord. I saw him go up stairs with the basket, 
and when he came down he intimated to me that he had de- 
livered it. [Cottingham subsequently states that he carried it up 
to Lord Macclesfield, and left it covered up in his study without 
saying a w^ord.] When I was admitted, my lord invited me 
to dinner, and some of my friends with me ; and he was pleased 
to treat me and some members of the House of Commons in a 
very handsome manner; I was after dinner sworn in before 
them. Some months after, I spoke to my lord's gentleman, 
and desired him, if he saw such a basket, that he would give it 
me back : and some time after he did so. 

" Q. Was any money returned in it ? A» No, there was 
not." 

The evidence in support of the impeachment having been 



LORD MACCLESFIELD. 237 

ably and minutely summed up by one of the managers^ Mr. 
West (appointed a few weeks afterwards Lord Chancellor of 
Ireland), the Earl, on the fifth day of the trial, entered upon his 
defence. It was rested, so far as it was founded in evidence, on 
several grounds. He relied, in the first place, upon the constant 
usage of his predecessors to receive money on the admission to 
the offices, his disposal of which was brought into question. 
The only instances, however, which he was able to make out in 
proof, were three, one in Lord Cowper's and two in Lord Har- 
court's time, the largest amount received being £800, and the 
money having been paid in every case out of the private funds 
of the parties before their admission, without invasion or en- 
dangerment of the suitors' monies.* To account for the ex- 
orbitant amount to which the presents had been advanced under 
his own auspices, he next adduced evidence to show that other 
offices in the Court of Chancery, particularly those of Xhe 
sworn and waiting clerks, had also risen greatly in price of late 
years. The repayment by him, after his dismissal from office, 
of the money (.363000) received on the appointment of two of 
the masters whose accounts were in default — various attempts to 
effect a settlement of the deficiencies on what he considered 
advantageous terms for the creditors — instances of his en- 
deavours from time to time to compel the Masters to bring in 
their accounts, (but which never appeared to have been seriously 
enforced) — the payment by him out of his own pocket of a sum 
of ^61000 to one of the suitors who were sufferers by Dormer's 
embezzlements ; — constituted the principal facts urged in his 
behalf, rather in extenuation than absolute negation of the sub- 
sequent charges of impeachment. It was then sought to remove 

* Lord Townshend, arguing against the production of this species 
of evidence, showed that his residence in Ireland had not been thrown 
away upon him. He objected that, if admitted, "it would only show 
that this sort of corruption was hereditary." — The legislature itself had» 
in truth, been accessory to the continuance of the practice ; for when, 
in the debate on the bill for enabling the Lords Commissioners of the 
Great Seal to execute the offices of Lord Chancellor and Lord Keeper 
(1 W. & M. c. 21,) a clause was proposed prohibiting the sale of the 
office of Master in Chancery, it was directly negatived in the Lords. . 



2SS LORD MACCLESFIELD. 

from liis conduct the stain of personal avarice, by calling wit- 
nesses to attest the munificent extent and disinterested character 
of liis private charities ; his frequent remission of fees to the 
poorer clergy on their presentation to livings; numerous in- 
stances of the generous and unsolicited bestowal of money or 
preferment on persons of learning and character in reduced cir- 
cumstances ; and munificent donations for public or religious 
uses. After the evidence in defence had been closed and sum- 
med up, his counsel were desirous of giving further proof of the 
purely private sources of his charities, and the limited extent of 
his personal income ; this, however, was objected to and disal- 
lowed, as irregular at this period of the proceedings. 

The noble defendant himself, after an adjournment of a few 
days allowed him to prepare himself, and to recover from the 
bodily and mental exhaustion of the long inquiry already gone 
through, then entered upon his personal defence, in a speech of 
great length, ability, and judgment ; in which, after contending 
that the receipt of a gratuity on the admission to an office con- 
nected with the administration of justice was not necessarily 
criminal in itself, unless an unfit person were admitted, nor was 
an ofl^ence at common law, or under either of the statutes to 
which reference had been made ;* and combating the argument, 
that there was an inconsistency in pleading innocence and claim- 
ing at the same time the protection of an act of indemnity, — he 
went in detail into the charges against him, and the voluminous 
evidence in support of them, and exerted all the efforts of an 
acute and well-trained understanding to shade down the harsh- 
ness of the proof, and place in the strongest light the explanations 
and palliatives which had been offered on his part; abstaining 
judiciously from any attempt at mere ornamental oratory, and 
almost from any appeal to the favourable consideration of his 
judges. That he did not succeed in altering materially the aspect 
of the facts, was soon shown by the result. Serjeant Pengelly 
and Mr. Lutwyche having replied for the Commons, and some 

* 12 R. 2, c. 2, prohibiting the Chancellor, &c. from making justices 
of the peace or other officers "for any gift or brocage, favour or affec- 
tion;" and 5 & 6 Edw. 6, c. 16, which avoids all bargains for the sale 
and purchase of offices touching the administration of justice. 



i 



LORD MACCLESFIELD. 2 39 

brief supplementary evidence in reply having been given and 
commented upon by both sides, the proceedings in accusation 
and defence terminated with the tenth day of the trial ; and on 
the following morning (May 25) the noble judges pronounced 
their unanimous verdict, ninety-three peers voting on the occa- 
sion, that the accused was guilty of the crimes and misdemeanors 
charged upon him by the impeachment. Being brought to the 
bar, and formally acquainted with the determination of the House, 
he addressed them in a short deprecatory speech, in which he 
urged upon their compassionate consideration the " cruel dis- 
temper" which the fatigue and anxiety of the trial had brought 
upon him, the loss of his office, the public censure and reproach 
he had undergone, and the fact of his having already paid back 
a sum of £10,000 towards the liquidation of Dormer's deficiency. 
When he had withdrawn, a fine of £30,000 being proposed as 
the sentence, a motion was made to refer to the opinion of the 
judges the question, whether the sale of an office having relation 
to the administration of justice were an offence at common law. 
This proposition was negatived almost at once, and the imposi- 
tion of the fine agreed to without a division : — a punishment 
which, whether we consider the magnitude and danger of the 
offences, or the amount of individual injury and suffering they 
had mainly contributed to inflict (for the whole deficiency in the 
suitors' monies amounted to no less a sum than £81,000), we 
cannot pronounce to have been disproportionately or unreason- 
ably severe. Two subsequent propositions, which, following 
the precedent in Lord Bacon's case, sought to declare the Earl 
for ever incapable of any office or employment in the state, and 
to exclude him from sitting in parliament or coming within the 
verge of the court, were negatived by very small majorities; on 
the former indeed there was an actual equality of voices, although 
by the usage of the House it passed thereupon in the negative. 

The usual message having been communicated to the Com- 
mons, that the Peers were ready to give judgment on the im- 
peachment when they with their Speaker should come to demand 
it, it appeared that the noble culprit still had in that assembly 
friends who had the courage to raise their voice in his behalf; 
for a warm debate, which lasted for six hours, ensued upon the 



240 LORD MACCLESFIELD. 

question whether they should demand judgment; which was at 
length carried in the affirmative by a majority of 136 voices 
against 65. The thanks of the House were then presented to 
the managers of the impeachment; the Speaker, Sir Spencer 
Compton, characterising their efforts as almost" above all Greek, 
above all Roman fame," and congratulating them that " that 
sword of vengeance," the power of impeachment, which, " when 
drawn by party rage, directed by the malice of faction, or wielded 
by unskilful hands, had too often wounded that constitution it 
was intended to preserve, had now, by their able management, 
turned its edge to a proper object, a great offender ;" hinting at 
the same time a little disappointment at the unsatisfactory depth 
of the wound it had inflicted, in the hands of the noble but too 
merciful executioners of its terrors. The judgment having been 
formally demanded and pronounced, the noble prisoner was con- 
ducted to the Tower until payment of the fine. He remained 
there but a few weeks, by which time the money w^as raised by 
a mortgage of his Oxfordshire property to his son-in-law, to 
whom it was repaid by degrees after his death by the second 
earl. The king, well aware that it was mainly on his account 
that his favourite's delinquencies had been made the mark of 
prosecution, sighed as he struck his name out of the council- 
book, and communicated to him, through Sir Robert Walpole, 
his intention to repay him the amount of the fine out of the 
privy purse, as fast as he could spare the money ; accompanying 
the message with gracious expressions of his sympathy and con- 
tinued favour. Within a year, accordingly, the Earl was paid 
a sum of dSlOOO by the royal command. In the course of the 
next year (1727) Sir Robert sent him word that he had the 
King's directions to pay him £2000 more whenever he should 
apply for it. Unwilling to risk the forfeiture of the royal bounty 
by clutching it too eagerly, he let a month pass without making 
any application, when the unwelcome intelligence arrived of the 
king's sudden death on his way to Hanover. Lord Parker 
thereupon lost no time in waiting on Sir Robert to receive the 
money on his father's behalf; but obtained for answer that "his 
late majesty and he (Walpole) had a running account, and at 
present he could not tell on which side the balance was, and 



LORD MACCLESFIELD. 2^t 

therefore he could not venture to pay the ^2000." Whether 
the wary minister was apprehensive of embarrassing in any 
degree the difficult game he had then to play, in order to retain 
his ascendancy in the councils of the new sovereign, or whether 
he was mean enough to seize this opportunity of gratifying his 
personal pique against his fallen colleague, it is difficult to pro- 
nounce ; the promised payment, however, was never made, and 
here ended of course all hope of reimbursement from royal grati- 
tude or favour. 

The two Houses of Parliament applied themselves without 
delay to repair, so far as they could, the evils occasioned by 
these extensive defalcations, and to prevent the recurrence ot 
similar delinquencies. By the statute 12 G. 1, c. 32, the office 
of Accountant-General of the Court of Chancery was created, 
and subjected to a series of checks and responsibilities which 
may be said to have precluded the possibility, with ordinary 
vigilance, of fraud or abuse in the management of the funds and 
securities of the suitors; which, withdrawn from individual 
keeping or control, were thenceforth, the instant they were 
brought under the authority of the Court, deposited in the Bank 
of England, to be transferred only by a process which affijrds a 
complete security against their misappropriation. Another act, 
passed at the same time, imposed an additional stamp duty of 
sixpence on original writs for sixteen years, for the indemnifi- 
cation of the defrauded suitors.* But no remedies were yet 
applied, nor even any immediate inquiry directed, to the general 
defects and abuses of the Chancery jurisdiction. The govern- 
ment, meantime, displayed their sense of the unlawfulness of the 
acts charged against the displaced functionary, by granting to 
his successor, Lord King, an addition to his salary of £1500 a 
year out of the Hanaper office, by way of recompense for the 
loss his office would sustain by the judgment of the House of 
Lords on the impeachment. 

The unfortunate Earl of Macclesfield, bankrupt in reputation, 
and almost in fortune, retreated to the seclusion of Shirbourn 

* Lord Macclesfield's fine -was also lent out at interest for the bene- 
fit of the suitors nntil the extent of the deficiencies was ascertained, 
when a distribution of it was made amongst them. 



24f2 LORD MACCLESFIELD. 

Castle, and there, withdrawing himself altogether from the em- 
bittered intercourse and painful recollections of public life, found 
his chief occupations in the meditations and exercises of religion, 
the distribution of charity, and the cultivation of literature and 
science. Partly for the purpose of directing the studies of his 
son, who manifested an extraordinary capacity for scientific and 
philosophical inquiry, and partly from a benevolent kindness 
towards the individual, he received and maintained in his house 
the father of the celebrated Sir William Jones, a mathematician 
of considerable eminence, but whose scientific attainments con- 
stituted his chief wealth. This blameless and useful retirement 
he continued to enjoy for nearly seven years, until his death, 
which'— as in the case of all the distinguished lawyers, his con- 
temporaries, whom we have recently commemorated — removed 
him before he could be said to have declined under the decay or 
pressure of old age. He had for some years been subject to 
attacks of strangury ; and his friend Dr. Pearce coming to visit 
him one dry, when he was staying at his son's house in Soho 
Square, in the month of April, 1732, found him suffering under 
an access of that complaint, which had come upon him in the 
night before, so violent and painful that he was already im- 
pressed with the conviction that it would prove mortal. His 
mother, he said, had died of the same disease on the eighth day, 
and so should he. On the eighth day, accordingly, his friend, 
who had visited him constantly during the interval, found him 
past hope of recovery, and given over by his medical attendants ; 
his half-superstitious belief having perhaps contributed to pro- 
duce its own accomplishment. He felt himself, he said, drown- 
ing inwardly, and dying from the feet upwards. He retained 
to the last the perfect possession of his faculties ; applied him- 
self with pious resignation to the exercises of devotion, and bade 
adieu to his family and household with the same calm clieerful- 
ness as if he were setting out upon a journey; and about ten 
o'clock at night, having inquired whether the physician was 
gone, and being told that he was, he replied faintly — " and I am 
going too, but I will close my eyelids myself;" he did so, and 
in a few moments peacefully breathed his last, April 28, 1732, 
in the 66th year of his age. " This was the end," says Dr. 



LORD MACCLESFIELD. 243 

Pearce, who relates this touching scene, " of this great and good 
man who, during all the time that I had the happiness of know- 
ing him, seemed to live under a constant sense of religion as a 
Christian, at his hours of leisure reading and studying the Holy 
Scriptures, more especially after his misfortunes had removed him 
from the business and fatigues of his ofGce." His body was opened 
by the celebrated surgeon Cheselden, when the malady which car- 
ried him off was found to have had its origin in extensive and 
long-seated ravages of the stone. 

The fatal taint of judicial corruption, to expiate which Lord 
Macclesfield paid the forfeit of station, influence, and reputation, 
formed almost the only serious blemish in a character distin- 
guished by many excellent and Moble qualities. The very 
wealth thus discreditably added to his income was not hoarded 
to aggrandize his family, but was as liberally diffused as it had 
been ignobly acquired : 

« Tho' he U' ere unsatisfied in getting 
(Which was a sin), yet in bestowing 
He was most princely." 

He was a munificent and discerning patron of science and litera- 
ture at a period when the former at least was lamentably ne- 
glected by men of power and influence in general. When the 
Saxon types, which had been used in 1709 for printing St. 
Gregory's Homily, were burnt in the fire of Bowyer's printing 
office, he bore the whole expense of cutting a new set of types 
to be employed in printing Mrs. Elstob's Saxon Grammar. He 
suggested to Bentley the editing of variorum editions of the 
classics for the use of Prince Frederick, to be executed on a 
more correct and scholarlike plan than the Delphin editions, and 
undertook to obtain from the government a remuneration of 
£500 a year during the progress of the undertaking ; but the 
doctor refusing his services for a less consideration than a pen- 
sion of 561000 a year for life, the project fell to the ground. We 
have formerly mentioned that, at the personal request of Lord 
Cowper, he retained the poet Hughes in the office of secretary 
for the commissions of the peace, which formed his whole pro- 
vision ; an obligation enhanced by the courteous assurance, that 
the personal merits of the party recommended constituted of 



244 LORD MACCLESFIELD. 

themselves a sufEcient passport to his favour.* Another Whig 
bard, Rowe, was placed at the same time in the comfortable 
sinecure of secretary to the presentations. Of liis general benefi- 
cence sufficient proofs were adduced upon his trial. The eccle- 
siastical patronage at his disposal he bestowed with the sincere 
design of rewarding learning and piety, and sustaining the inter- 
ests of the church of which he was a zealous and devout com- 
municant. Zachary Pearce, the learned and excellent Bishop 
of Rochester, was entirely unknown and unpatronized, until he 
obtained his notice by dedicating to him, when Chief Justice, 
his edition of Cicero De Oratore, and laid thereby the whole 
foundation of his future fortune. By Lord Macclesfield's re- 
commendation to Bentley, Mr. Pearce was speedily chosen into 
a fellowship of Trinity ; on his patron's elevation to the wool- 
sack, he was received into his house as his chaplain ; a few 
years afterwards he presented him to the valuable living of St. 
Martin's in the Fields, in despite of the claims of a rival candi- 
date for preferment (Dr. Clagget, afterwards Bishop of Exeter), 
who had actually kissed hands at the Court of Hanover on his 
nomination to it ; and put him into the course of further advance- 
ment by procuring for him an appointment as one of the royal 
chaplains. Other instances are recorded of tiie Chancellor's dis- 
interested and judicious distribution of church patronage. Not- 
withstanding the faults of temper which he exhibited on the 
bench, in the intercourse of private life he was accessible and 
affable, a warm and constant friend, a pleasing and instructive 
companion ; not possessed of that temperament of universal 
courtesy which attracts the good-will of many, but acquiring 

* The following effusion, from a copy of verses on the Chancellor's 
birthday, may serve as a specimen of the eulogistic gratitude with 
which the poet repaid his patronage. 

« Not fair July, tho' Plenty clothe his fields, 

Tho' golden suns make all his mornings smile, 
Can boast of aught that such a triumph yields. 
As that he gave a Parker to our isle. 

Hail, happy month ! secure of lasting fame ! 

Doubly distinguished thro' the circling year: 
In Rome a hero gave thee first thy name, 

A patriot's birth makes thee to_Britain dear." 



LORD MACCLESFIELD. 24<5 

and retaining the warm and enduring attachment of a few. The 
well known lines we have just quoted are not the only portion 
of honest Griffith's character of the fallen Wolsey which might 
be applied to him : — 

" Lofty and sour to them that loved him not, 
But to those men that sought him, sweet as summer. 
****** 

His overthrow heaped happiness upon him, 
For then, and not till then, he felt himself. 
And found the blessedness of being little. 
And, to add greater honours to his age 
Than man could give him, he died fearing God." 

Lord Macclesfield had by his wife Janet, the daughter and 
coheir of a gentleman of the name of Carrier, of Wirkworth, in 
Derbyshire, who survived him but a few months, one daughter, 
Elizabeth, whom we have already mentioned as the wife of Sir 
William Heathcote ; and one son, George, who succeeded to the 
title, deriving from his father an estate of little more than 
^63000 a year, incumbered too with a heavy debt. He distin- 
guished himself by a devotion to the pursuit of abstract science, 
of which his rank has afforded few instances before or since ; 
acquired the reputation of one of the first mathematicians and 
astronomers of Europe, and was chosen, by a unanimous vote, 
President of the Royal Society. He had the principal share in 
framing the bill for the reformation of the Juhan calendar, and 
spoke upon it, as Lord Chesterfield informs us, with infinite 
knowledge, and all the clearness that so intricate a matter would 
admit of; although Chesterfield himself, who introduced the 
bill into the House of Lords, conceived himself to have carried 
away, from his more graceful elocution and more popular mode 
of treating the subject, all the applauses of his noble auditory, 
and to have imposed himself upon them as fully master of all its 
details, while, says he, " I could just as soon have talked Celtic 
or Sclavonian to them as astronomy, and they would have un- 
derstood me just as well." 

The only literary production ascribed to the Lord Chancellor 
Macclesfield is a tract, which is printed in the second volume of 
Gutch's "Collectanea Curiosa," entitled "A Memorial relating 
to the Universities," being a series of propositions the main 



246 LORD MACCLESFIELD. 

object of which was to cure the Jacobite tendencies displayed by 
those bodies on the accession of George I.,by aUerations in their 
course of study and discipline, and in the succession to college 
offices, fellowships, and livings. He proposes, for instance, 
that the heads of houses should be chosen, not by the societies 
over which they were to preside, but by the great officers of 
state and some of the bishops ; that the fellows should hold only 
for twenty years at all events ; that they should have more ex- 
tensive opportunities of intercourse with the world, by a more 
liberal dispensation with their residence in college ; he suggests 
the foundation of a professorship of the law of nature and na- 
tions, and the institution of courses of lectures in chymistry, 
anatomy, experimental philosophy, and other branches of more 
general knowledge than fell at that period within the prescribed 
course of academical instruction. By such methods he proposed 
to render the Universities " more useful to the nation, by the 
increase of learning, and augmenting the number of those who 
might have the benefit of a learned education, as well as by 
bringing those seats of literature to a better sense of their duty 
to their king and country." 

We shall conclude this imperfect memoir by expressing our 
belief, in the words of a more illustrious judicial delinquent, that 
Lord Macclesfield's criminality and degradation proceeded not 
" from the troubled fountain of a corrupt heai-t, in a- depraved 
habit of taking rewards to prevent justice, however he might be 
frail, and partake of the abuses of the times." His fate not only 
presented a seasonable and salutary warning, but was immedi- 
ately beneficial to his country, in stopping up, by the applica- 
tion of legislative remedies, the sources in which the same 
corruptions might otherwise have been again engendered. 



LORD KING. 



Peter King, the only son of Mr. Jerome King, a substantial 
grocer and dry-salter in the city of Exeter, descended from a 
respectable family which had been settled for a considerable 
period at Glastonbury, in Somersetshire, was born at Exeter in 
the year 1669. Being designed by his father for the same useful 
though inglorious occupation which had secured himself a com- 
fortable income, young King, after acquiring the rudiments of an 
ordinary provincial education at the grammar school of his na- 
tive city, was introduced behind the counter, to learn the thriving 
business to which he was to owe his future support. Who 
(says a biographer) that had stept into the shop of Mr. Jerome 
King, and had there seen his son up to the elbows in grocery, 
could have perceived in him a future Chancellor of Great Bri- 
tain? But the thirst of knowledge, and doubtless the glimpses 
of ambition, visited him even through this ungenial atmosphere. 
All the pocket-money he could hoard was devoted to tlie pur- 
chase of books, and every hour of leisure to the eager perusal of 
them. Bred up chiefly among dissenters — although it does not 
appear that his parents were themselves actually separatists from 
the Church, or that he was educated in the principles of dissent, 
— it was not surprising that his studies should assume the direc- 
tion of inquiry into the religious questions which, at the period 
of the Revolution, occupied and divided the country ; but it can- 
not be doubted, that his relationship and intercourse with the 
illustrious Locke, who, if not his maternal uncle, was at least 
his near kinsman by the mother's side, contributed not a little to 
impress his mind, young as it was, with the superior importance 
and interest of such subjects of investigation. Be this as it may, 
the fruits of his studies were shortly made apparent, in a man- 
ner which not only astonished his friends, but introduced him at 



248 LORD KING. 

once to the general and admiring notice of literary men. Before 
he completed his twentieth year, he had put the finishing hand 
to a work of some extent — an " Enquiry into the Constitution, 
Discipline, Unity, and Worship of the Primitive Church that 
flourished within the first 300 years after Christ: faithfully col- 
lected out of the extant writings of those ages :" — a title which 
of itself implied the expenditure of much research and learning, 
of a kind that would have been supposed least likely to attract 
the pursuit of a young man in his condition of life. 

The question of a comprehensive union between the Estab- 
lished Church and the Dissenters, by a mutual concession of 
some of the points of external discipline and ritual in differ- 
ence between them, had at several periods occupied the atten- 
tion of the legislature and the clergy. The occurrence of the 
Revolution appeared to the Dissenters to furnish them with a 
desirable occasion of reviving this project. They were by no 
means satisfied with the relief then afforded them by the pass- 
ing of the Toleration Act, which they regarded less as an exten- 
sion of favour than as an injurious invasion of their right to an 
equality of religious profession. They had warmly recom- 
mended themselves to the countenance of the new sovereign by 
the assistance they had rendered him in his enterprise ; while, 
on the other hand, a large portion of the hierarchy and clergy of 
the Establishment had denied his right and abjured his supremacy. 
They drew up, accordingly, divers plans of accommodation or 
comprehension^ in all of which they were to be treated as the 
equals in every respect of the Church ; and the proposed terms 
were such as to imply a preference, in the frame of their own 
constitution, discipline and worship, over the established forms. 
The same question was also, by the king's recommendation, 
submitted to the discussion of the bishops and clergy in convoca- 
tion. 

It was at this conjuncture, and in order to render all the aid in 
his power to this design of a comprehension, that our young 
author employed himself upon the inquiry which formed the 
subject of his work. Its purpose was to show, out of the writ- 
ings of the early Fathers, that the primitive church, in its consti- 
tution, discipline, and worship, was founded upon a model of 
which presbyterianism, more than episcopacy, was the legiti- 



LORD KING. 249 

mate descendant: that the primitive bishop was no more than a 
pastoral minister — his diocese no more than a parish or cure, 
where he resided constantly in discharge of his pastoral func- 
tions towards his church or flock ; — being elected by the whole 
body of the people, church and lay, and his election confirmed 
by institution from the neighbouring bishops. A presbyter he 
collects from the same authorities to have been also a person in 
holy orders, differing from the bishop only in the circumstance 
of his not having a particular parish appropriated for the exer- 
cise of his ministry, — like parson and curate, equal in order 
although not in degree. He proceeds to consider the constitu- 
tion and jurisdiction, spiritual and temporal, of the ancient pres- 
bytery, and to contend for its non-conformity with the frame and 
spirit of the modern episcopalian government. The wzjV?/, again, 
of the primitive church, he affirms, consisted not in a uniformity 
of rites, or an agreement in the non-essential points of Chris- 
tianity, but only in a consentaneous belief in the fundamental 
articles of faith and doctrine. In prosecution of the same argu- 
ment, he goes on to vindicate the claim of the presbyterians 
against the Established Church, in respect to primitive antiquity 
in the article of their worship, and contends that no adherence to 
set forms of liturgical or sacramental ritual was demanded of the 
early worshippers. This outline, imperfect as it is, is sufficient 
to attest the extent of reading and closeness of study which must 
have been demanded for the production of such a work, pro- 
fusely illustrated as it was throughout with citations from a vast 
number of original authorities : and though we may admit that 
some of these were afterwards shown to have been misinter- 
preted, and not a few of the reasonings to have been immature 
and inconclusive, it may well have been deemed an extraordinary 
undertaking for a youth of nineteen, gleaning his information "by 
stealth and morsels" behind the desk of a grocer's counting- 
house, or during the brief leisure which most young men of his 
age and situation, relieved from the drudgery of an irksome oc- 
cupation, and not pressed by the necessities of poverty, would 
have been too happy to spend, if not in mere amusement, at 
least in the enjoyment of social intercourse. The work was 
published anonymously, in the spring of 1691-2, and at once 
excited attention and interest. There was a becoming air of 

17 



250 LORD KING. 

youthful ingenuousness and diffidence pervading it; and the 
author, in a modest preface, sohcited the correction public, or 
private, of any errors he might be shown to have fallen into, pro- 
fessing that his only purpose was to elicit inquiry and promote 
the cause of truth.* A correspondence was commenced, in con- 
sequence of this invitation, between him and a Mr. Edmund 
Elys, which was published by the latter a few years afterwards, 
but seems to have left the questions between the disputants 
pretty much in the same position as it found them : and the work 
received no formal answer until some twenty years later, when, 
on the agitation of the question as to the repeal of the Schism 
Bill, being quoted as an unanswered and therefore unanswerable 
vindication of the separation of the dissenters from the Church, 
it was replied to by a nonjuring clergyman of the name of 
Sclater, in a volume entitled "The Original Draught of the 
Primitive Church," which is reported to have contained so com- 
plete a refutation as to have made a convert even of King him- 
self; who, however, having then attained knighthood and judicial 
dignity, was doubtless a much more willing subject of conver- 
sion, than when pursuing the obscure studies of his boyhood 
amid the quiet circle of the Exeter dissenters. 

The production of this work sealed the emancipation of the 
young author from the unwelcome occupation to which he had 
been destined. At the earnest recommendation of his illus- 
trious kinsman, his father acquiesced in his desire to seek, in 
the profession of the law, the field in which his talents and 
knowledge might be applied with the best prospect of finding 
their due rew^^rd. As Locke bore, from his own experience, 
little love towards the maternal discipline of the English univer- 
sities — where, perhaps, the subscription of the Articles formed 
also an obstacle to the introduction of the young champion of 
presbyterianism — he advised that he should repair, for the pro- 
secution of the necessary preparatory studies, to the University 
of Leyden. There, accordingly. King took up his residence in 

* Whiston charges him nevertheless -with a disingenuous suppres- 
sion of facts which were stated in the very authorities cited in the 
margin of his book, — e. g. the fact that water was mixed with the 
wine in the Eucharist, in the first ages of the Church; and with 
garbling passages of the original authors to suit his own views. 



LORD KING. 251 

the same year, 1692; his name having in the meantime been 
entered on the books of the Inner Temple. After three years 
spent in diligent and profitable study under his Dutch teachers, 
he returned to settle himself in the learned precincts of the 
Temple, and applied himself with equal assiduity to the acquisi- 
tion of legal knowledge in its more strictly professional depart- 
ments. In Easier Term, 1698, being then in his twenty-ninth 
year, he was called to the bar. 

It would appear that either the reputation of his attainments, 
or the recommendation of his distinguished relative, procured 
him almost immediately an introduction to practice. Locke 
writes to him, in a letter dated the 3d July in that year; "I am 
glad that you are so well entered at the bar ; it is my advice to 
you to go on so gently by degrees, and to speak only in things 
that you are perfectly master of, till you have got a confidence 
and habit of talking at the bar." He lived already in the enjoy- 
ment of no common acquaintanceship : his letters to Locke show 
him in communication with Newton and Somers, and in even 
familiar intercourse with the Lords Peterborough, Shaftesbury, 
Pembroke, &c. To these advantages it was, doubtless, that he 
owed also his introduction into Parliament; being returned at 
the general election in 1700 for Beeralston, in conjunction with 
Cowper, a few years afterwards Lord Chancellor. For this 
borough he continued to sit without interruption through all the 
Parliaments of Queen Anne's reign ; a zealous partisan through- 
out, as might be inferred from his early pursuits, of the Whig 
principles of that day. It is evident that Locke regarded his 
kinsman's success in this arena, and the fulfilment of his duties 
as a representative, as of much more importance than his devo- 
tion to professional engagements. He writes to him, on the 
commencement of the session of 1700-1, strongly pressing him 
to remain in town instead of going the circuit — advice not very 
palatable to a barrister of hardly two years' standing, already 
launched into practice : — " I am as positive as I can be in any- 
thing that you should not think of going the next circuit. I do 
not in the meantime forget your calling; but what this one omis- 
sion may be of loss to you, may be made up otherwise. I am 
sure there never was so critical a time when every honest 
member of Parliament ought to watch his trust, and that you 



252 LORD KING. 

will see before the end of the next vacation. I therefore expect 
in your next a positive promise to stay in town. I tell you you 
will not, you shall not repent it."* The election of a Speaker 
has been lately alleged as an unfair or unseemly occasion on 
which to test the strength of parties. Not so thought our philo- 
sophic moralist. In a letter a few days later in date, he writes : 
*' It is my private thought that the Parliament will scarce sit 
even so much as to choose a Speaker before the end of the 
term ; but whenever he is chosen, it is of no small consequence 
which side carries it, if there be two nominated, or at least in 
view, as it is ten to one there will be, especially in a Parliament 
chosen with so much struggle. Give all the help you can in 
this, which is usually a leading point, showing the strength of 
the parlies." The same letter conveys some excellent advice 
to the young senator, which we transcribe for the especial benefit 
of aspiring lawyers, burning to unveil the maiden charms of 
their eloquence within the walls of St. Stephen's: — "My next 
advice to you is, not to speak at all in the House for some time, 
whatever fair opportunity you may seem to have; but though 
you keep your mouth shut, I doubt not you will have your eyes 
open, to see the temper and observe the motions of the House, 
and diligently to remark the skill of management, and carefully 
watch the first and secret beginnings of things, and their tenden- 
cies, and endeavour, if there be danger in them, to crush them 
in the egg. You will say, what can you do, who are not to 
speak ? It is true, I would not have you speak in the House, 
but you can communicate your light or apprehensions to some 
honest speaker who may make use of it, for there have always 
been very able members who never speak, who yet by their 
penetration and foresight have this way done as much service as 
any within those walls. And hereby you will more recommend 
yourself, when people shall observe so much modesty joined 
with your parts and judgment, than if you should seem forward, 

* We borrow these extracts from the letters printed in the late Lord 
King's Life of Locke, and stated to have been selected from a great 
number remaining amongst the Chancellor's papers at Ockham. We 
should have been glad if his Lordship had drawn much more largely 
from the same source : those with which he has enriched his work 
are equally admirable for sentiment and expression. 



LORD KING. 25S 

though you spoke much." This advice, as might have been 
foreseen, found but a cold observance: only a month afterwards 
we find the writer giving a fresh caution ; — " I am glad the ice 
is broke, and that it has succeeded so well ; but now that you can 
speak, I advise you to let them see you can hold your peace ; 
and let nothing but some point of law which you are perfectly 
clear in, or the utmost necessity, call you up again." 

Although, in this instance, the "unruly member" found the 
temptation too great to be resisted by good counsel, our young 
lawyer appears to have resorted habitually to the wisdom and 
experience of the philosopher for advice and guidance: and in 
return, to have been regarded by him with the warmest esteem 
and affection. In a letter dated in June, 1704, a few months 
before Locke's death, he presses his young friend in the most 
affectionate terms to pay him a visit, as the highest gratification 
which could console his decline: — "All appearances concur to 
warn me that the dissolution of this cottage is not far oflf. Re- 
fuse not, therefore, to help me to pass some of the last hours of 
my life as easily as may be, in the conversation of one who is not 
only the nearest but the dearest to me of any man in the world. I 
have a great many things to talk of to you, which I can talk to 
nobody else about. I know nothing at such a time so desirable 
and so useful as the conversation of a friend one loves and 
relies on." He died in the following October, having by his 
will bequeathed to King half his library, and a considerable por- 
tion of his property. 

The writer of a biographical account of the Locke family, in 
the Gentleman's Magazine, alludes to his having heard a col- 
lateral relative of the philosopher treat the name of King with 
some* reproach, as having supplanted the rightful inheritors in 
the affections and property of their illustrious kinsman ; although 
this person admitted that he was not himself the heir, and could 
not tell who was. This, however, is a species of reproach which 
— even had it been bettej founded than it appears in this case to 
have been — the fortunate party generally finds it no great hard- 
ship to endure. 

Notwithstanding the double claims upon his time, from his 
professional and parliamentary duties, our lawyer did not yet 
altogether forego the theological studies which had formerly 



254 LORD KING. 

occupied his attention so exclusively. While consulting the 
original authorities in tlie composition of his "Inquiry," he had 
been led to investigate the origin and history of the several Creeds 
promulgated at diflerent periods for the assent of the early Chris- 
tians, especially that known by the title of the Apostles' Creed, 
and the design of the primitive fathers in the composition of 
them. Pursuing the same train of inquiry more systematically, 
the result was the publication by him, in the year 1702, of a 
volume entitled " The History of the Apostles' Creed ;" its pur- 
pose being, not to furnish a theological exposition of the several 
articles, but to trace historically how much of them was in truth 
referable to the immediate sanction of the Apostles themselves, 
and upon what occasions the rest had been from lime to time 
added, for the purpose of meeting different heretical opinions as 
they sprung up : a task requiring litUe less research and 'applica- 
tion than his former work, although it dealt less, perhaps, with 
disputable matter, and was less calculated to provoke hostile 
criticism. It obtained for him a considerable increase of literary 
reputation, and was in the course of a few years translated into 
the Latin and several of the continental languages. Peter de 
Costa, sending an abstract of the work in French for publication 
in the " Nouvelles de la Republique de Lettres" for November, 
1702, relates that a certain English prelate, distinguished for his 
erudition, fancying it could only be a compilation from several 
treatises already published, or perhaps an abridgment of Bishop 
Pearson on the Creed, began to read it with that disadvantageous 
impression, but was quickly convinced of his mistake, and sur- 
prised to find so many curious things not to be met with in 
Pearson, and to observe so little borrowed from that writer. 
This, indeed, ought scarcely to have been matter of surprise, the 
design and frame of the two works being essentially different. 

Besides these productions, his title to which is unquestion- 
able, King has been commonly reputed the author of a contro- 
versial correspondence with Waller Moyle, an antiquarian and 
critic of great repute, on the subject of the supposed miraculous 
victory obtained through the prayers of the Christian soldiers in 
the army of the Emperor Antoninus, during the Marcomannic 
war, (narrated by Eusebius, and vouched as true by Tertullian 
and other Christian writers,) commonly called the miracle of the 



LORD KING. 255 

Thundering Legion:* King contending for, his adversary im- 
peaching, the authenticity and veritableness of the miracle, with 
a great display of classical and biblical learning, and not without 
an occasional infusion of the tartness with which religious con- 
troversy is usually seasoned. But we are disposed to consider 
his claim to the authorship of this correspondence as at least 
very doubtful. The letters ascribed to him are distinguished by 
the initial letter of his name only ; and in a subsequent page of 
the volume of Moyle's works, in which they are collected, we 
iind another letter on a scientific subject, apparently from the 
same Mr. K — , dated so long afterwards as the year 1721, to 
which Moyle replies by professing, in the first place, his grati- 
fication at the resumption of their correspondence after the lapse 
of so many years. The latter initial could by no means desig- 
nate the distinguished person who had then presided for years 
over one of the supreme courts of judicature. If, however, he 
was the author, it must be allowed that he came out of the con- 
troversy sufficiently worsted both in argument and learning. 

Though it seems, from the letters we quoted a few pages back, 
that King's first attempt in the House of Commons had procured 
him some distinction as a speaker, and though it is apparent from 
other parts of the same correspondence that he did not fail to fol- 
low up this success on several subsequent opportunities, no 
record has survived of his parliamentary attempts, until we come 
to the debates on the Aylesbury case, when he spoke with spirit 
and effect in support of the right of the electors. We quote a 
passage in which he replied happily and conclusively to the argu- 
ment derived from the entire novelty of the action against the 
returning officer : — 

" Gentlemen say this is a new action, never heard of before. 
It is true, this particular action was never brought before ; but 
actions of the same kind and nature, and grounded on the same 
principles and reasons of law, have been brought before ; et ubi 
eadem est ratio, idem jus. I could give you many instances of 
the kind. Was it ever heard until the 20lh or 21st of Charles 
II., that an action lay against an officer for denying a poll to one 
who stood candidate for a bridge-master ? The mayor denied 

* See Gibbon, oh. 16, vol. ii. p. 416. 



256 LORD KING. 

the poll, and said he was judge of ihe election ; and upon this 
the person injured brought his action, and recovered. At the 
same lime it was said, there was no such action heard of before ; 
it is true, not that species, but the genus was heard of. Another 
action was brought, 30lh Charles II., which was never heard of 
before, against a mayor for refusing the plaintiff's vote for a suc- 
ceeding mayor. I believe every body knows, that all the law 
books for four hundred years say that the reversioner has liberty 
to go into an estate of a tenant for life, to see if he commit waste : 
and yet no action was ever brought till the 16lh James I. by a 
reversioner against a tenant for life, for refusing to let him in to see 
whether waste was committed. No action was ever brought 
against a master of a ship for the negligent keeping and loss of 
goods on board his ship, till about the 24th Cliarles II. ; and yet 
the action lay. There was another action in King Charles I.'s 
lime brought for a false and malicious prosecution of an indict- 
ment of a man for treason. There was the same objection ; and 
it was said that this would deter people from prosecuting. And 
nobody ever dreamt of it before, it is true; but it stood upon the 
general reason of the law — if you do me a wrong, I must have 
a remedy." 

But amidst these recollections of politics and authorship, we 
are almost forgetting the more immediate claims which Mr. 
King prefers to our notice as a lawyer. The letters from which 
we have been quoting lead us to conclude, that, as early as about 
the year 1703, he had found his way into so much circuit and 
term business, as to have very little leisure at his command. A 
glance into the Modern or Lord Raymond's Reports amply con- 
firms this conclusion, and shows him to have been in possession 
of an extensive and profitable practice, before he was of more 
than four or five years' standing at the bar. It was some time, 
however, before he attained legal rank of any kind. His first 
preferment took place in 1705, when he was made Recorder of 
Glastonbury, whence, as we have said, his family had come ; 
his second in 1708, when he was elected to the important office 
of Recorder of London, vacant by the death of Sir Salathiel 
Lovel, and received in consequence, a few months afterwards, 
the honour of knighthood. At the general election of 1708, 
there was an expectation among the Tories that the court interest 



LORD KING. 257 

would have been divided between Sir Peter King and another 
Whig- candidate (Sir Richard Onslow) in the election of a Speak- 
er, and the former party thereupon contemplated putting up a 
candidate of their own ; but Sir Peter's pretensions being with- 
drawn, Onslow was elected without opposition. 

He had now attained an established reputation with his party 
as a debater; and in the following year (1709-10) was one of 
the managers named to conduct the prosecution against Sache- 
verell, being appointed to maintain the second article of the im- 
peachment, which accused the reverend seditionist of broaching 
covert attacks against the toleration granted at the Revolution, 
charging all as " false brethren with relation to God, religion, 
and the church, who defended toleration or liberty of conscience," 
and alleging that it was the duty of superior pastors " to thunder 
out the ecclesiastical anathemas against persons entitled to the 
benefit of the toleration, which sentences he insolently dared and 
defied any power to reverse." For the discussion of topics such 
as these King was well prepared by his theological learning, a 
department of knowledge not usually very familiar to lawyers ; 
and he distinguished himself accordingly, but more by informa- 
tion and research than eloquence. Not long afterwards, the same 
advantages again came prominently in aid of his professional 
duties, in defence of the celebrated Whiston, when under prose- 
cution before the Court of Delegates for his anti-trinitarian 
heresies. Not only did Sir Peter (as did his junior, Mr. Lech- 
mere) decline to receive a fee for his exertions in this case, but 
by his spirited conduct of it he was the means of rescuing his 
client from a threatened exercise of grossly arbitrary and illegal 
authority. When none of the common-law judges would con- 
cur in a sentence against the accused, the rest of the Court, com- 
posed of bishops and civilians, were on the point of determining 
to proceed without them, until King, declaring that his client 
should then proceed against ^Aew, and sue them to 3i prasmzinire, 
which a sentence so pronounced would incur, alarmed them by 
that courageous remonstrance into an acquittal. About the same 
time, he distinguished himself in the House of Commons as one 
of the most strenuous advocates of Bishop Fleetwood, when 
visited by the wrath of the now dominant Tories for the unpa- 
latable doctrines promulgated in the preface to his sermons. 



258 LORD KING. 

The annalists of the lime record him also to have borne a pro- 
minent part in the opposition to the pacification of Utrecht, and 
other measures of Oxford's ministry ; but of his speeches scarcely 
a word survives. 

On the expulsion of Walpole in 1712, Sir Peter is represented 
by Tindal as having joined in the attack upon his brother Whig, 
and even to have condemned him in terms of more acrimonious 
censure than were employed by his avowed enemies ; a strange 
contradiction out of the mouth of a warm Whig partisan, and 
not very reconcileable with the cordiality which continued to 
subsist for so many years between him and Walpole, not only 
as assertors of the same principles, but as colleagues in the same 
cabinet. The representation is doubtless founded upon a mis- 
conception of a paragraph in one of the Tory speeches against 
Walpole (the only portion of those debates which has been pre- 
served) in which the speaker refers to King, as having expressed 
an opinion that the criminated minister " deserved as much to 
be hanged" as he deserved the two punishments — expulsion and 
imprisonment in the Tower — which the House had voted against 
Iiim ; meaning thereby, as we understand it, that he deserved 
no punishment at all. The honours with which Sir Peter was 
shortly afterwards rewarded at the hands of the new sovereign, 
indicated any thing rather than a questionable fidelity to the 
cause and the champions of Whiggism. On the arrival of the 
King at St. Margaret's Hill, the boundary of the borough of 
Southwark, after his landing at Greenwich, he was received by 
a procession of the corporate body of the metropolis, and ad- 
dressed by their learned Recorder in a congratulatory speech ; 
the last duty he was called upon to perform in that capacity. A 
few weeks afterwards, (Nov. 14, 1712), Lord Trevor being dis- 
placed from the chief-justiceship of the Common Pleas, Sir Peter 
was elevated to the vacant seat, and in the month of April fol- 
lowing sworn of the Privy Council. 

Of the qualifications he exhibited in the exercise of his duties 
as a common-law judge, it is difficult to derive any judgment 
from legal testimony : the decisions of the Court, during his 
presidency, are nowhere collectively reported, and the few that 
are to be found scattered in the books furnish little ground for an 
opinion on his merits or defects. If, however, we may believe 



LORD KING. 259 

the encomiums lavished on him by a writer, whose praise and 
vituperation were both, it must be allowed, bestowed with the 
most bountiful profusion — we mean the Duke of Wharton, — >lhe 
character and qualifications of the new Chief Justice shone with 
a lustre which commanded the concurring applause and admira- 
tion of all parties. " The Lord Chief Justice King," says his 
Grace, in the thirty-ninth number of the True Briton, " was 
preferred to the Common Pleas under yet greater disadvantages 
than ray Lord Cowper to the seals ; for his great predecessor 
had the happiness, as a judge between man and man, to be uni- 
versally admired and beloved by both parties ; so that the diffi- 
culty of pleasing after so able a man seemed in a manner insu- 
perable ; for my Lord Chief Justice laboured not only under the 
prejudice which one party had entertained against him, as sup- 
posing he differed from them in principles of government ; but 
the united good opinion of both parties, so justly conceived in 
favour of his predecessor's great qualifications and merits ; which 
very few of either side expected could be ever equalled by any 
person that might succeed to his place in this age. Yet, under 
all these difficulties, which would have overwhelmed another, 
with the eyes of all the kingdom upon him, hath this truly great 
man acquitted himself in his high office to the universal satisfac- 
tion of both parties ; contrary to the expectations of the one, and 
even beyond the hopes of the other. And if he had not been 
indeed a prodigy of learning and wisdom, it would hardly have 
been possible for him to surmount so many disadvantages, and 
to appear in the same illustrious light with my Lord Trevor." 
Without suffiiring ourselves to be carried away by such a torrent 
of eulogy as this, we can hardly doubt that the praise was thus 
far well founded, that Sir Peter King discharged the duties of an 
office, for which along career of successful and industrious prac- 
tice had fully qualified him, with learning, efficiency, and im- 
partiality. 

Of the criminal trials at which he presided, there is one to 
which we may advert, because it excited at the time a very gene- 
ral interest, and because the doctrine laid down in it by the Chief 
Justice gave occasion to a good deal of criticism, and some 
division of opinion amongst lawyers. It was an indictment 
against Mr. Coke, a Norfolk country gentleman, and one W^ood- 



260 LORD KING. 

burne, his farm-servant, for slitting the nose of a gentleman 
named Crispe, the brother-in-law of the prisoner Coke, with 
intent to maim and disfigure him — the first case prosecuted under 
the Coventry Act, 22 &; 23 Car. 2, c. 1. The facts necessary 
to constitute the offence having been abundantly proved by the 
crown witnesses, and being indeed admitted in detail by Wood- 
burne, Coke, with a hardihood of atrocity of which even the 
records of criminal jurisprudence have furnished few examples, 
insisted that he ought to be acquitted under the statute, for 
that his intention was — as indeed the evidence made it more 
than probable — not merely to disfigure but to murder the unfor- 
tunate gentleman who was the object of his brutality ; and even 
after his conviction, he repeated the same argument in arrest of 
judgment. The Chief Justice, in summing up the case to the 
jury, disposed of this extraordinary plea in the following terms : — 
"There are some cases where an unlawful or felonious intent 
to do one act may be carried over to another act done in prose- 
cution thereof; and such other act will be felony, because done 
in prosecution of an unlawful and felonious intent. The prisoner 
insists that their intention was to murder and not to maim ; and 
that if they did maim or slit the nose, it was with an intention 
to kill, and not with an intention to maim or disfigure. On the 
other side it is insisted on by the king's counsel, that though the 
ultimate intention might be to murder, yet there might be also an 
intention to maim and disfigure; and though the one did not 
take effect, yet the other might : an intention to kill doth not 
exclude an intention to maim and disfigure. The instrument made 
use of in this attempt was a bill or hedging-hook, which in its 
own nature is proper for cutting and maiming ; and where it 
doth cut or maim, doth necessarily and by consequence dis- 
figure. Besides, the manner of perpetrating the fact is proper to 
be considered ; that it was done by violence, and in the dark, 
where the assailant could not well make out any distinction of 
blows, but knocked and cut on any part of Mr. Crispe's body 
where he could, till he had struck him down, and done to him 
whatever else he pleased. And if the intention ivas to murder, 
you are to consider whether the means made use of to effect and 
accomplish that murder, and the consequences of those means, 
were not in the intention and design of the party ; and whether 



LORD KING. 261 

every blow and cut, and the consequences thereof, were not in- 
tended, as well as the end for which it is alleged those blows 
and cuts were given." 

This, which we venture to pronounce an eminently sound and 
clear exposition of the doctrine of criminal intent, as applied to 
the facts then under consideration, gave occasion, as we have 
said, to a good deal of legal criticism ; and we learn that several 
of the judges, on a conference in a subsequent case of the same 
nature, expressed some dissatisfaction with the Chief Justice's 
conclusions, and thought at all events that the construction 
adopted by him ought not to be carried further.* 

Naturally of a mild and benevolent disposition, the Chief Jus- 
tice King administered the criminal law in a spirit of patient and 
cautious humanity. A circumstance much to his credit is disclosed 
in the evidence given before the committee of the House of 
Commons, for inquiring into the state of the gaols, in the year 
1729. Some years before, when he sat in the Common Pleas, 
a complaint was preferred to him from the prisoners in the Fleet, 
that they were immured in close and unwholesome confinement 
within the prison walls. The warden urged in answer, that 
from the insecurity of the prison there was continual danger of 
the prisoners escaping. "Then you may raise your walls 
higher," was the reply of the Chief Justice ; " but there shall 
be no prison within a prison." 

Sir Peter King continued to occupy his seat in the Common 
Pleas for upwards often years, until the crimination and disgrace 
of Lord Chancellor Macclesfield opened the way for his advance- 
ment to a higher, and, as it proved, equally secure elevation. 
On that nobleman's resignation of the great seal, in January, 
1724-5, Sir Peter was appointed Speaker of the House of 
J^ords, and in that character presided at the ex-chancellor's trial. 
As soon as the issue of it rendered the return of the disgraced 
favourite to office impossible, he received the seals from the 
hands of the Commissioners, to whom they had in the mean 
time been committed, with the title of Lord Chancellor ; and 
was at the same time (May 25, 1725) raised to the peerage by 
the title of Lord King, Baron of Ockham, in the county of 

» Willes, J., and Eyre, B., in Carrol's case, 2 East, P. C. 400. 



2i)2 LORD KING. 

Surrey, wliere lie had, many years before, purchased from the 
Sulton family a handsome mansion and considerable estate. A 
pension of jGGOOO a year, payable out of the Post Oflice, was 
settled upon him in addition to the ordinary emoluments of his 
office ; and in consideration of the loss of income which the 
chancellorship had sustained by the judgment of the House of 
Lords, declaring the sale of subordinate offices in the Court 
illegal, an additional allowance of s61200 a year was granted 
to him, issuing out of the Hanaper Office. 

In a Diary in which he noted most of the political movements 
of the cabinet of which he was a member, he has deemed the 
proceedings, on the important occasion of his introduction into 
the House of Lords and at court, worthy of minute record : — 
"1725. Tuesday, June 1. Monday the 31st May, being the 
last day of the sitting of Parliament, I was introduced into the 
House of Lords as Lord King, Baron of Ockham, in the county 
of Surrey. My introducers were Lord Delaware and Lord 
Onslow. Baron's robes were lent me by Lord Hertford. And 
this day at noon I went to St. James's, and being called into the 
King's closet, he delivered the seals to me as Lord Chancellor ; 
and soon after I went to the council-chamber, carrying the seals 
before him. The first thing that was done was to swear me 
Lord Chancellor, after which I took my place as such." 

On the report of his approaching advancement to the peerage, 
a gentleman of the name of Whatley, a friend and neighbour of 
Sir Peter, addressed to him a long letter on the choice of a motto 
for his coat of arras, which is preserved among the Soraers 
Tracts, and is no small curiosity in its way. The writer, hav- 
ing informed him that on hearing he was to be made a peer, 
" the thought came into his mind to find out a motto for his 
Lordship's arms, which he conceived too trifling a subject for 
his own consideration" — passes in review a vast number of the 
mottoes of existing peerages, with an appropriate commentary 
upon each, as to its applicability to Sir Peter's peculiar excel- 
lences and deserts. Referring in the first place to the list of 
punning mottoes, although he admits that one might be not in- 
aptly formed out of his correspondent's name (as for instance, 
j1 rege pro rege), he dismisses that class with a condemnation 
almost as decisive as might have been pronounced by Johnson, 



LORD KING. 26S 

who laid it down that the man who would make a pun would 
pick a pocket: — " But I consider them as in very bad taste in- 
deed, there being nothing more decayed, as to matters of writing 
or speaking in the present age, nor I think more justly, than 
anything founded on a pun !" Having exhausted the peerage, 
living and extinct, he comes at length to submit for his Lord- 
ship's selection four sentences, the long considered products of 
his own invention and research ; one of which, however, he 
reminds himself is unfortunately inadmissible, not being alto- 
gether a novelty, as he remembered to have seen it on the Elec- 
toral coin. The three others of which he kindly tenders the 
choice are. Est modus in rebus, Biscite justitiam, and Vincit 
ratio : none of them, we should have thought, particularly re- 
condite or expressive, although he enlarges eloquently on the 
peculiar applicability of each to the qualifications and virtues of 
the peer elect; confessing his preference for the last, as being 
entirely the offspring of his own inventive genius. His Lord- 
ship, however, somewhat ungratefully rejecting all the rich ma- 
terials of choice provided for him by his correspondent, selected 
a motto of his own, far more felicitously expressive of the self- 
rewarding assiduity which had distinguished him throughout his 
professional career : — Labor ipse voluptas. The choice gave 
occasion to his being addressed in a happy paraphrase of poeti- 
cal compliment : — 

" *Tis not the splendour of the place, 
The gilded coach, the purse, the mace, 
Nor all the pompous train of state, 
With crowds that at your levee wait, 
That make you happy, make you great. 
But whilst mankind you strive lo bless 
With all the talents you possess ; 
Whilst the chief joy that you receive 
Arises from the joy you give ; 
This takes the heart, and conquers spite, 
And makes the heavy burthen light; , 
Tot pleasure, rightl}' understood. 
Is onlj' labour to do goodJ^* 

* Lord King himself is said to have occasionally sacrificed in spor- 
tive mood to the muses; but the only specimen of his poetical compo- 
sition that has survived to us is the following facetious epitaph on the 



264 LORD KING. 

The first duty which devolved upon Lord King in tlie Court 
of Cliancery, was to provide securities against the recurrence of 
frauds similar to those which had led to the disgrace of his pre- 
decessor. Accordingly, a voluminous set of orders was drawn 
up under his superintendence, in November, 1725, providing for 
the deposit and transfer of the suitors' monies, in such a man- 
ner as to render any misappropriation at least a matter of the 
greatest difficulty ; and in the following session of parliament, 
this plan was legalized by statute, with the additional security 
derived from the creation of the office of Accountant-General. 
This service performed, the catalogue of his lordship's deserv- 
ings as the dispenser of equitable jurisprudence — excepting 
always a strict and unimpeachable integrity — may almost be 
said to be complete : in all the other requisites for the formation 
of an equity judge, he fell far behind the qualifications and at- 
tainments of his predecessor. Neither his practice nor his ex- 
perience had been such as to prepare him for the administration 

carpenter to the family, which is still to be read upon his grave-stone 
in the church-yard at Ockham : — 

"Who many a sturdy oak hath laid along, 

Fell'd by death's surer hatchet, here hes Spong; 

Posts oft he made, yet ne'er a place could get, 

And lived by railing, tho' he had no wit; 

Old saws he had, although no antiquarian ; 

And stiles corrected, yet was no grammarian ; 

Long lived he Ockham's premier architect ; 

And lasting as his fame a tomb to erect 

In vain we seek an artist such as he, 

Whose pales and gates were for eternity. 

So here he rests from all life's toils and follies ; 

O spare awhile, kind Heaven, his fellow-labourer Hollis."i 

■' A passage in the fourth book of the Dunciad appears to point, mali- 
ciously enough, at one of Lord King's sons, as belonging to the race 
of scribblers: — 

" Great C**, H**, P**, R**, K*, 

Why all your toils'? your sons have learned to sing; 

How quick ambition hastes to ridicule ! 

The sire is made a peer, the son a fool!" 



^ The bricklayer to the family. 



LORD KING. 265 

of equity, nor was his intellectual strength, or even his physical 
powers, sufficient to enable him, like Lord Macclesfield, — 
although, with the unremitting diligence which had always dis- 
tinguished him, he laboured zealously and painfully, even to the 
injury and ultimate sacrifice of his health, — ever satisfactorily to 
supply his deficiencies. The intensity of his mental labour at 
length brought upon him, about the year 1730, a lethargic dis- 
ease, partaking doubtless of an apoplectic character, which used 
frequently to oppress him even while sitting on the bench. Mr. 
Bentham, in a letter printed among Cooksey's Memorials of 
Lord Somers, assures us that this was the occasion of no preju- 
dice at all to the suitors ; for that " Sir Philip Yorke and Mr. 
Talbot were both men of such good principles and strict integrity, 
and had always so good an understanding with one another, that 
although they were frequently and almost always concerned for 
opposite parties in the same cause, yet the merits of the cause 
were no sooner fully stated to the court, but they were sensible 
on -which side the right lay; and accordingly the one or the 
other of these two great men took occasion to state the matter 
briefly to his lordship, and instruct the registrar in what manner 
to minute the heads of the decree." We may observe that the 
great majority of cases were at that time of day heard at the 
Chancellor's house, where such arrangements might be carried 
into effect much more snugly than before the larger auditory of 
Wesminster Hall or Lincoln's Inn. If, however, we may judge 
by the number of appeals that were prosecuted from Lord King's 
decrees, more of which were reversed than of any other Chan- 
cellor during the same period of time, this equitable and com- 
pendious mode of dispatching the business of the court was not 
so perfectly satisfactory to the suitors as it is represented to 
have been. Many of his judgments will also be found to have 
been impeached or qualified by subsequent authorities. His 
decisions are extant in the Reports of Peere Williams and 
Kelynge ; the principal cases heard before him, from 1726 to 
1730, were also collected by a reporter of the name of Moseley, 
in a volume which has generally been estimated as of very 
questionable authority. In the copy belonging to Mr. Hargrave, 
now in the British Museum, that gentleman has written the fol- 
lowing testimonial in favour of the book: — " Lord Mansfield, in 

18 



2G6 LORD KING. 

5 Burr. 2G29, says tliis book should not be quoted ; and in 
Myddleton v. Lord Kenyon, Lord Cliancellor Loughborough 
observed to Mr. Fonblanque, upon his citing a case from it, that 
he had not heard it cited. But I took the liberty of saying, that 
I had often heard it cited, and that I had found very good matter 
in it." It appears to have been published at Dublin, and with- 
out the imjirimatur of the judges. 

Although, by the judgment against Lord Macclesfield, a severe 
check had been administered to the more flagrant and pernicious 
evils of official peculation and corruption, the publications of the 
time abound with as loud and frequent complaints as ever, of the 
delay, expense, and grievance of the equity jurisdiction. In the 
successive sessions of parliament, from 1729 to 1733, commit- 
tees of the House of Commons were employed in obtaining re- 
turns of all the fees and emoluments of the several courts of 
justice, and examining into their origin and reasonableness, with 
the purpose of applying some general and comprehensive reme- 
dies. The ultimate result of their inquiries was the appoint- 
ment of a body of Commissioners, who, afier a protracted and 
not very laborious investigation, produced at length, in the year 
1740, a Report upon the subject, of which, imperfect and un- 
satisfactory as were the remedies or ratlier palliatives it sug- 
gested, nothing at all was in fact effected or attempted. On the 
memory of Lord Hardwicke rests the censure of having per- 
petuated evils, whose existence and magnitude he admitted, and 
the redress of which his influence and exertions could have 
found no difficulty in accomplishing. 

With the gratified or still hoping candidates for patronage and 
advancement, in the poet's phrase, 

"A judge is just, a chancellor juster still :" — 

in the mouth of disappointed and dissatisfied expectants the 
judgment is very different. The Chancellor's quondam friend 
and client, Whiston,on applying to him for the gift of some pre- 
ferment to a friend, was no less mortified than surprised at the 
revolution which, according to his account, the seductions of 
wealth and power had WTOught in the character and feelings of 
the once independent and conscientious advocate. "Upon my 
application to him," says he, " I found so prodigious a change in 



LORD KING. 267 

him, such strange coldness in matters that concerned religion, 
and such an earnest inclination to money and power, that I gave 
up my hopes quickly. Nay, indeed, I soon perceived that he 
disposed of his preferments almost wholly at the request of such 
great men as could best support him in his high station, without 
regard to Christianity ; and I soon cast off all my former ac- 
quaintance with him. Now, if such a person as the Lord 
King, who began with so much sacred learning and zeal for 
Christianity, was so soon thoroughly perverted by the love of 
power and money at Court, what good Christians will not be 
horribly affrighted at the desperate hazard they must run, if they 
venture into the temptations of a Court hereafter ? Exeat 
aula,''' concludes the disappointed moralist, " qui vult esse 
pius !'''' — A consolatory reflection for all our legal dignitaries 
withdrawn from the temptations of office ! 

This sweeping bill of indictment against the Chancellor's pro- 
bity and consistency was perhaps a little aggravated by per- 
sonal disappointment and vexation : the writer, however, relates 
an anecdote containing a more specific charge, and one which 
tells heavily against the sincerity of his lordship's religious pro- 
fessions: — " When I was one day talking with the Lord Chief 
Justice King, one brought up among the dissenters at Exeter, 
under a most religious. Christian, and learned education, we fell 
into a dispute about signing articles which we did not believe, 
for preferment; which he openly justified, and pleaded for it, 
that we must not lose our usefulness for scruples. Strange doc- 
trine in the mouth of one bred up among dissenters, whose 
whole dissent from the legally established Church was built on 
scruples ! I replied, that I was sorry to hear his lordship say 
so ; and desired to know whether in their courts they allowed of 
such prevarication or not. He answered, they did not allow of 
it. Which produced this rejoinder from me, 'Suppose God 
Almighty should be as just in the next world as my Lord 
Chief Justice is in this, where are we then?' To which he 
made no answer. And to which the late Queen Caroline added, 
when I told her the story, ' Mr. Whiston, no answer was to be 
made to it.' " 

On Lord King's appointment to the chancellorship, George L 
had made a struggle to retain in his own hands the distribution 



-268 LORD KING. 

of ecclesiastical patronage. His lordship, however, opposed a 
stout and ultimately successful remonstrance against this un- 
welcome invasion of one of the most attractive appurtenances 
of his dignity. He thus relates the matter in his Diary. 
"About July 8th, the King told me that he expected to nomi- 
nate to all beneficQ^s and prebendaries that the Chancellor 
usually nominated to. I told him, with great submission, that 
this was a right belonging to the office, annexed to it by act of 
parliament and immemorial usage, and I hoped he would not put 
things out of their ancient course .... Sunday, July 16. I 
then saw him again: he seemed now very pleasant; he told me 
I should go on as usual." If Whiston's account of the manner 
in which the Chancellor discharged his trust in this respect be 
at all correct, his majesty would hardly have done the state dis- 
service by persevering in his original design. 

Lord King retained his office for several years, through the 
gradual decay of his bodily and mental faculties, until at last his 
health being entirely broken, he was compelled, at the close of 
the year 1733, to relinquish the possession of the seals. He 
lingered in a hopeless decline for some months longer, and at 
length expired in the evening of the 29th July, 1734, having 
been struck speechless by an apoplectic fit some hours before, 
in the 66th year of his age. His remains were deposited in the 
parish church of Ockham, where, a few years afterwards, a 
costly monument was erected to his memory, consisting of a 
handsome marble statue upon a pedestal of marble, bearing an 
inscription of less exaggerated eulogy than generally speaks 
from the tomb. By his wife, Anne, the daughter of Richard 
Seys, Esq., of Boverton, in Glamorganshire, with whom, ac- 
cording to that record, " he lived to the day of his death in 
perfect love and happiness," he had four sons, all of whom 
successively enjoyed the title, and two daughters. Of the 
youngest son, Thomas, who alone had male issue, the present 
Earl of Lovelace is the lineal descendant in the fourth degree. 



LORD TALBOT. 



The uneventful life of this accomplished lawyer and most 
estimable man, scarcely otherwise marked than by the successive 
steps of his elevation in the profession he adorned, and by his 
advance in the esteem of all good men, however admirable the 
example it supplies for the imitation of the legal student, must 
be admitted to furnish litde of incident or amusement to the 
reader of biography. But our list of distinguished lawyers would 
be indeed imperfect if Ids name were omitted, who perhaps 
above them all, by a rare union of the highest professional ac- 
quirements with the calm and dignified exercise of virtues almost 
unblemished even by frailty or error, commanded the universal 
reverence of his country while he lived, and her deep and abid- 
ing regret, when a premature death removed him from the sphere 
of his honours and his usefulness. So few, however, are the 
recorded facts of his life, that our brief notice will necessarily 
wear the appearance rather of a panegyric than a biography. 

William Talbot, a gentleman of some fortune in Staffordshire, 
descended from a younger branch of the ancient and renowned 
house whose fame some centuries before had resounded through- 
out Europe, was the father of an only son, William, who entered 
the church, and through the interest of his kinsman, the well 
known Charles Talbot, Duke of Shrewsbury, became succes- 
sively Dean of Worcester, Bishop of Oxford, and Bishop of 
Salisbury, until, in the year 1722, he settled upon the summit of 
clerical advancement, in the princely dignities of Durham. By 
his second wife, Catharine, the daughter of a Mr. King, an alder- 
man of London, he had eight sons and several daughters. Of 
those who lived to maturity, the eldest was Charles, the subject 
of this memoir. He was born in the year 1684, his father being 
then the incumbent of an Oxfordshire living ; and having gone 



270 LORD TALBOT. 

through the usual course of preparatory study, and acquired 
more than the usual substratum of classical knowledge, was en- 
tered, in Michaelmas Term 1701, a gentleman commoner of 
Oriel College, Oxford. There also, as well as at school, he dis- 
tinguished himself by his successful application to the prescribed 
studies ; and having, in right of his rank as the son of a bishop, 
proceeded to his bachelor's degree at the end of three years' 
residence, was almost immediately afterwards (November, 1704) 
elected to a fellowship of All Souls' College; for which the sta- 
tutory qualification is to be *' bene natus, bene vestitus, et mode- 
rate in arte cantandi doctus." His original purpose had been to 
take orders ; and it is said to have been by the earnest advice 
and request of Lord Chancellor Covvper, and not without some 
reluctance and apprehension, that this destination was aban- 
doned, and he applied himself to the study of the law. Having, 
however, made his final choice of a profession, he at once en- 
tered zealously on the acquisition of the knowledge necessary to 
its successful prosecution ; and even during his under-graduate- 
ship, legal reading formed a regular head of his studies. 

He was entered of the Inner Temple on the 28th of June, 
1707, and on the 11th of February, 1710-11, was called to the bar 
by that society. In the same year he vacated his fellowship by 
marrying Cecil, daughter and heiress of Charles Matthews, Esq., 
of Castle Mynach, in Glamorganshire, and great-grand-daughter 
by the mother's side of the celebrated Welsh judge, David 
Jenkins, whose zeal and sacrifices in behalf of the royalist cause 
were so conspicuous in the great rebellion, and who made so 
gallant a resistance to the tyranny of privilege. From him she 
inherited, and conveyed to her husband, the estate of Hensol, in 
the same county, from which he afterwards took the title of his 
barony. 

Supported by his talents and assiduity, and aided by the coun- 
tenance of his patron, and the influence of his illustrious con- 
nexions, he advanced rapidly in professional estimation, and 
grew, after a very few years, (and before he received any legal 
rank) into leading practice in the equity courts, to which he had 
from the first devoted himself. His professional industry was, 
indeed, taxed to support an expense not less unusual than it was, 
in this instance, unbecoming. The splendid revenues of the see 



LORD TALBOT. 271 

of Durham were insufficient to maintain the profuse and mag- 
nificent expenditure of his father, the bishop, even though, to 
the great injury of his popularity and usefulness, he increased 
them considerably by advancing the fines on the renewal of 
leases held under the see ; and his son was compelled, on two 
several occasions, to apply large sums to the satisfaction of his 
debts. 

In the first parliament of George the First's reign, Mr. Talbot 
had been elected for Tregony, and sat for that borough until 
1722 ; at the general election in that year he was returned for 
Durham city, his father having just then been advanced to the 
bishopric. On the death of the Solicitor-General, Sir Clement 
Wearg, in April 1726, he was appointed to succeed him ; and 
on that occasion, as also at the general election which followed 
in 1728, he was re-elected for Durham, and retained that seat 
until his elevation to the woolsack. His parliamentary duties 
were probably made subordinate to his professional ; at all events, 
hardly a record survives, beyond the testimony of general pane- 
gyric, to show that he escaped the common fate of eminent law- 
yers within the walls of St. Stephen's. Yet he appears early 
to have attained some standing with his party ; since he was 
selected in 1722 to second the re-election of Sir Spencer Comp- 
ton to the speakership, the mover being Lord Stanhope, after- 
wards the celebrated Earl of Chesterfield. We believe there are 
but one or two other occasions on which he is mentioned in the 
collections of the Parliamentary History, as a speaker in either 
house.* 

* In the year 1736, although then Chancellor, he strongly opposed, in 
conjunction with Lord Hardwicke, some severe clauses of a bill for the 
repression of smuggling ; but his speech is not reported. The protest of 
the dissentient peers on that occasion slated, as one of its main grounds 
of justification, that "as two noble and learned lords, who presided in 
the two greatest courts in the kingdom, had shown by the strongest 
arguments that the bill, as it stood, might be dangerous to the liberty 
of their fellow subjects, they (the lords) could not agree to the passing 
of it, however expedient or necessary it might be supposed in other 
respects." Mr. Hallam cites this as a remarkable proof of the rigorous 
restraints imposed by our fiscal code upon the personal liberty of the 
subject, which could create such alarm in the " not ver)'^ susceptible" 
mind of a regularly bred crown lawyer, and one always disposed to hold 
very high the authority of government. 



212 LORD TALBOT. 

Nor'was the reign of George IL, until tlie occurrence of the 
disastrous rising of 1745, a period in wliicli the law ofTicers of 
the crown found occupation, or could acquire distinction, in the 
conduct of important stale prosecutions. Mr. Talbot (he had 
not received the rank of knighthood with his patent of Solicitor- 
General) appears in the Slate Trials twice only — on the occa- 
sion of the prosecutions directed by the Gaol Committee of the 
House of Commons, in 1729, against the keepers of the Fleet 
and other prisons, for the murder of prisoners in their custody 
by confinement in cold and pestilential cells ; and also on the 
trials of one Hales for extensive forgeries, in the same year. 
The great arena of his learning and talents was the Court of 
Chancer}^ where himself and the no less eminent Attorney- 
General, Yorke — magis pares quam similes — divided almost 
the whole business of the court, and even (if an anecdote we 
quoted in a former memoir may be credited) at times stood in 
the place of the court itself. So extensive a practice, and so 
acknowledged a reputation, could not fail, independently of his 
claims as one of the law officers of the government, and of those 
derived from his high personal estimation and unblemished cha- 
racter, to recommend him as pre-eminenUy fitted for advance- 
ment even to the highest judicial rank. 

By the contemporary events, of the resignation of Lord Chan- 
cellor King and the death of Lord Raymond,* the two chief 
prizes of the profession fell at the same time to the disposal of 
the minister. The general expectation was, that according to 
the usual routine of promotion, the great seal would be trans- 
ferred to Sir Philip Yorke, and the post of chief justice given to 
Talbot. But as the duties of the former had withdrawn him 
more from that exclusive attendance on the courts of equity to 
which the latter had devoted himself, although both were 
equally qualified to occupy the bench of the Court of Chancery, 
yet the Attorney-General was more perfecdy fitted to discharge 
the more varied duties belonging to the presidency of a common- 
law court. There was indeed some small difficulty on a subject 
which lay pretty close to Sir Philip's heart, — the respective 

* Lord Raymond died in the Hilary vacation of 1733 ; Lord King did 
not resign until the following October; but the chief justiceship was 
not filled up in the interval, probably in expectation of the latter event. 



LORD TALBOT. 273 

incomes of the two offices ; but this was satisfactorily obviated, 
by an increase of the salary of Chief Justice from two to four 
thousand a year, by the assurance of a peerage, and by the con- 
sideration of the much less precarious tenure of the latter post; 
— for Sir Robert Walpole was already exposed to the assaults of 
an unrelenting and formidable opposition : Yorke, therefore, took 
his seat in the King's Bench, and entered the House of Peers as 
Baron Hardwicke ; Talbot, with the unanimous assent and ap- 
plause of the profession, received the Great Seal, and with it 
the dignity of the peerage, by the title of Lord Talbot, Baron of 
Hensol. His patent bears date Dec. 5th, 1733. On this eleva- 
tion, he resigned the office of Chancellor of the diocese of Ox- 
ford, which had been given him by his father, when bishop of 
that see, with the view of his resigning it in favour of his 
younger brother Edward, had not the bishop been removed to 
Salisbury before the latter became qualified for the office. 

It was on the occasion of Lord Talbot's taking leave of the 
Society of the Inner Temple as a bencher, upon his advance- 
ment to the Chancellorship, that the last of those solemn revels, 
which were wont of old to grace the halls of the Inns of Court, 
and whereon the venerable Dugdale dilates with such a grave 
complacency, was celebrated in the Inner Temple Hall. We 
cannot ^refrain from paying our humble tribute to the memory 
of these departed scenes of " exquisite fooling," by transferring 
to our pages the narrative of this the last of them, as we find it 
specially recorded in the notes to Wynne's Eunomus. Alas ! 
all things are become new : — not even the dignified solemnities 
which erst accompanied the investiture of the coif, not even the 
venerable ceremonial of counting, has now escaped the ruthless 
edge of innovation ; the very purple robes, in which the learned 
personages we speak of still rejoice to involve themselves, ere 
long, we fear, will have faded from our view, or hang the 
empty mementos of departed honours, at length to all intents 
and purposes 

"hoc inane purpuras decus!"* 

* It will be obvious that this passage was written before the warrant 
of William IV., by which the exclusive right of audience of the Ser- 
jeants was abrogated, had been adjudged to be void. The learned bro- 
therhood now flourish and increase more largely than ever. 



274 LORD TALBOT. 

But our regrets must not be suHered to detain us from our 
history. 

"On the 2nd of February, 1733-4," says the historian, who 
evidentl)' writes con amore on the inspiring subject, " the Lord 
Chancellor came into the Inner Temple Hall, about two of the 
clock, preceded by the Master of the Revels, Mr. WoUaston, 
and followed by the Master of the Temple (Dr. Sherlock, Bishop 
of Bangor), — [what a truly canonical and episcopal exercitation !] 
— and by the judges and Serjeants who had been members of 
that house. There was a very elegant dinner provided for them 
and the Lord Chancellor's officers ; but the barristers and stu- 
dents of the house had no other dinner provided for thera than 
what is usual on grand days ; but each mess had a flask of 
claret [the times have degenerated in this respect"], besides the 
common allowance of port and sack. Fourteen students waited 
on the bench-table, among whom was Mr. Talbot, the Chancel- 
lor's eldest son, and by their means any sort of provision was 
easily obtained from the upper table by those at the rest. A 
large gallery was built over the screen, and was filled with 
ladies, who came, for the most part, a considerable time before 
the dinner began ; and the music was played in the little gallery, 
at the upper end of the hall, and played all dinner-time. 

" As soon as dinner was ended, the play began, which was 
Love for Love^ w^ith the farce of The Devil to Pay. The actors 
who performed in them all came fiom the Hayraarket in chairs, 
ready dressed ; and, as it was said, refused any gratuity for their 
trouble, looking upon the honour of distinguishing themselves 
on this occasion as sufficient.* After the play, the Lord Chan- 
cellor, INIaster of the Temple, judges, and benchers, entered into 
their parliament chamber, and in about half an hour afterwards 
came into the hall again, and a large ring was formed round the 
fire-place (but no fire or embers were on it). Then the Master 
of the Revels, who went first, took the Lord Chancellor by the 
right hand, and he, with his left, took Mr. Justice Page, who, 

* We learn from one of the public journals of the day that the praise 
of this extraordinary disinterestedness was not quite deserved: — " the 
societies of the Temple were pleased to present £50 to the comedians." 
The same authority reports, " that the ancient ceremony of the judges, 
&c. dancing round the coal fire, was performed with great decency'' 



LORD TALBOT. 275 

joined to the other judges, Serjeants, and benchers present, 
danced, or rather walked, ' round about the coal fire,'' accord- 
ing to the old ceremony, three times, during which they were 
aided in the figure of the dance by Mr. George Cook, the pro- 
thonotary, then of sixty ; and all the time of the dance, the 
ancient song, accompanied with music, was sung by one Toby 
Aston, dressed in a bar-gown, whose father had been formerly 
Master of the Plea OfEce in the King's Bench. 

'* When this was over, the ladies came down from the gallery, 
went into the parliament chamber, and stayed about a quarter of 
an hour, while the hall was being put in order : then they went 
into the hall, and danced a few minutes [minuets]. Country 
dances began at ten, and at twelve a very fine collation was pro- 
vided for the whole company, from which they returned to 
dancing, which they continued as long as they pleased ; and the 
whole day's entertainment was generally thought to be very gen- 
teelly and liberally conducted. The Prince of Wales honoured 
the performance with his company part of the time ; he came 
into the music incog, about the middle of the play, and went 
away as soon as the farce of walking round the coal fire was 
over." 

After all, we fear this final " farce" was but a cold and degene- 
rate resemblance of its predecessors in Dugdale's time. 

The Chancellor, introduced with such august ceremonies into 
his oflice, administered its duties in such a manner as to give the 
most unqualified satisfaction to the practitioners, the suitors, and 
the country. Eminently learned and experienced in the princi- 
ples and practice of equity, dignified, courteous, temperate, dili- 
gent, with intellectual powers as clear and discriminating as his 
mind was unprejudiced and his integrity unassailable, he appeared 
to unite in himself all the qualifications necessary to the forma- 
tion of a perfect equity judge. The immediate consequence of 
his appointment was a great increase of business in his court, 
which, nevertheless, his learning and diligence combined to keep 
under, with much smaller arrears than in the time of his prede- 
cessor, who had been inefficient no less from his broken health, 
than from his want of those qualifications for his office which 
nothing but a course of practice at the equity bar can eff*ectually 



276 LORD TALBOT. 

supply, at least to any but the higliest order of intellectual supe- 
riority. Lord Talbot's demeanour on the bench is described in 
the highest terms of praise by his contemporary eulogists. " In 
his hearing of the bar, all gentlemen there were equally treated ; 
none could be said to have the ear of the Court; neither rank 
nor personal acquaintance with his Lordship gave the counsel or 
his clients any advantage in the making of the decree or order, 
or in the countenance of the Court at the time of delivering the 
argument." Sensible that the judicial duties of his office in the 
Court of Chancery and on the woolsack were sufficient to 
engage all the powers and demand all the energies of a single 
mind, and being at the same time of a temperament little dis- 
posed to extreme opinions in politics, he did not seek to occupy 
a prominent position either at the council table, or in the minis- 
terial conduct of the House over which he presided. " The 
Chancery," says another more enthusiastic encomiast, '* was his 
province ; he had the eloquence of a Cowper, the learning of a 
Somers, and an integrity peculiarly his own. He had patience 
in hearing, readiness in apprehending, judgment in discerning, 
and courage in decreeing." His decisions are reported in the 
volume known by the title of " Cases tempore Talbot," collected 
by Mr. Forrester, a practitioner of repute at the equity bar. 
They exhibit, indeed, in the form in which we have them, little 
of the eloquence so highly rated above, which the reporters of 
that day, devoted entirely to the illustration of the legal doctrines 
of the cases, would perhaps have deemed an incongruous and 
impertinent superfluity; but they display a strong and ready 
grasp of facts, a thorough intimacy with legal principles and 
authorities, and an eminently clear and logical exposition of 
them : his judgments being invariably accompanied by a state- 
ment, more or less in detail, of the reasons upon which they 
were grounded. They retain an authority almost untouched by 
the dissent of later judges. 

Great as was the satisfaction with which the elevation of Lord 
Talbot was generally regarded, we find that there was one 
person, and that one of no inconsiderable note, who saw his 
advancement, and viewed his public conduct, with a dislike 
and suspicion for which it is difficult to account, except on the 



LORD TALBOT. 277 

supposition of some personal favour refused, or job suppressed. 
This was the old Duchess of Marlborough, whose restless and 
virulent spirit — 

"From loveless youth to unrespected age, 
No passion gratified, except her rage," — 

still found its most congenial food in the strife and personality 
of politics. Perhaps, as a member of Walpole's cabinet, the 
Chancellor was involved as of course in the bitter hostility she 
waged against the minister himself. We suspect she found 
reason before long to abate the admiration with which (as it 
appears from one of the paragraphs we are about to quote) Lord 
Hardwicke — not yet the dispenser of patronage- — had inspired 
her. In a letter to Lord Marchmont, of the date of June 1734, 
she writes (referring to the complaints of corrupt interference 
in the election of Scotch peers) — " There will be vast numbers 
of petitions in the House of Commons, of the same sort, in the 
elections of this country, as has been practised in yours ; and 
one against my Lord Chancellor, who has done most unbecom- 
ing and unjustifiable things to make a return for his son against 
Mr. Mansell for Glamorganshire. This is a step very bad to 
begin his reign with ; but it is certain he is a man of no judg- 
ment, whatever knowledge he may have in the law ; nor does 
he know any thing of the world or the qualities of a gentleman." 
In a letter a few months later in date, she entertains her noble 
correspondent with the following narrative: "I had an account 
lately, which I will write, because I do not think it is printed, 
that my Lord Chief Justice Hardwicke has got great credit in 
his circuit to Norwich. There was a Yarmouth man in the 
interest of Sir Edmund Bacon, who, upon pretence of a riot at 
the entry of the courtiers, the mayor ordered to be whipped. 
This man brought his action, and my Lord Hardwicke said it 
was very illegal and arbitrary, and directed the jury to find for 
him, which they did, and gave damages, though the foreman 
of the jury had married a daughter of Sir Charles Turner, who 
I take to be a near relation of Sir Robert's. I do not think this 
made the poor man amends, who was whipped wrongfully ; for 
I would have had those that occasioned the whipping doubly 
whipt themselves. But I suppose the judge could go no further ; 



21S LORD TALBOT. 

and I liked it, because my Lord Hardwicke is a great man ; and 
I hope from this action, as well as from his independency, that 
he will have some regard to the proceedings of Scotland when 
represented : but vemember that I prophesy, that the man that 
is one step above him will have no regard but to his present 
interest. I know the man perfectly well." From another letter 
in the same collection (the Marchmont Papers) we learn that 
towards the latter end of the same year, 1734, a rumour pre- 
vailed, that the Chancellor had taken "extreme disgust" at some 
conduct of the ministers, who were stated to have used him so 
ill that a man of honour and spirit could not brook it. What- 
ever was the cause of this dissension, of which we find no hint 
elsewhere, it was by some means repaired before it widened 
into an avowed breach. Possessing at once the confidence of 
the sovereign and the good opinion of the nation, he could not, 
indeed, easily have been made the victim of ministerial jealousy 
or cabal.* 

He continued in the occupation of his high office, and the 
assiduous discharge of its duties, and had, as we are assured, 
almost matured his plans for an extensive and efficient reform 
of the imperfections and abuses of the equitable jurisdiction,! 
when a sudden and premature death hurried him, after an illness 
of only five days, from the scene of his laborious and honourable 
exertions. His constitution, always delicate, had suffered much 
from the fatigue he had encountered in the despatch of the 
business of his Court; and though the immediate cause of his 
death was an attack of inflammation on the lungs, it was found, 
on his body being opened by Mr. Cheselden, that a polypus of 
considerable extent adhered to his heart, which must of course 
have proved mortal after no long period of time. He resigned 

* It is stated in the Biograpbia, "that it was generally said, that had 
the Chanceller lived a little longer, he would have had the lead in ihe 
ministry," and the writer in the Craftsman hints at a similar expecta- 
tion : " Under the influence of such a man, we had reason to hope for 
a complete coalition of parties, or at least for a re-union of such as 
wish well to their country." It is impossible to ascejtain what truth 
there was in these surmises. 

j- This probably means no more than that he was a leadmg member 
of the Commission which had then been for some years prosecuting 
its inquiries on this subject, and which made a Report in 1740. 



LORD TALBOT. 219 

himself to death with the calmness and composure derived from 
a long course of sincere religious observance, and expired, the 
subject of universal regret, at his house in Lincoln's Inn Fields, 
on the 14th of February, 1736-7, not having yet completed his 
fifty-second year. The last official act of his life was the affix- 
ing the seal to the conge d^elire for the elevation of Dr. Potter 
to the primacy, on the evening but one before he died. His 
remains were conveyed to his seat at Barrington, in Glouces- 
tershire, and deposited- in a vault under the chancel of that 
church. 

The public organs of both political parties united in encomiums 
on his virtues and lamentations for his loss. The Craftsman, 
which, under the auspices of Pulteney and Bolingbroke, was 
conducted in a spirit of unrelenting and systematic hostility to 
Sir Robert Walpole's government, vied with the ministerial press 
in its praises and regrets ; although even a more unequivocal sign 
of the general esteem with which he had been regarded is afforded 
by the fact, that during the continuance of his life and power, 
when the publications of both parties teemed with lampoon and 
scurrility, the Chancellor (so far as we have been able to disco- 
ver) does not appear to have been made the subject of a single 
personal attack. The forbearance of political enemies to a living 
minister is even a higher testimony than their praise of him when 
dead. " He is a single instance," says the writer in the Crafts- 
man, " that real worth and integrity will not go unrewarded, even 
in this degenerate age, as far as the affections, and almost tlie 
veneration, of the people may be looked upon as any reward. 
Whig and Tory, court and country, men of all parties and per- 
suasions, unite on this occasion, and vie with each other who 
shall do most justice to the memory of so extraordinary a 
person." 

Of the personal appearance and deportment of Lord Talbot we 
are told no more than that they were dignified and prepossessing. 
We have seen no picture of him ; but Houbraken's print, in Dr. 
Birch's collection, represents him, we believe faithfully, as of a 
spare countenance, dark complexioned, with a grave and thought- 
ful but mild and pleasing expression of features. Pope, classing 
him in the list of the early patrons of his poetical attempts, de- 



280 LORD TALBOT. 

signates him "the courtly Talbot," referring, doubtless, to the 
high-bred polish of his manners, which might possibly have 
contracted a little of the slateliness of official communication. 
As little are we admitted into the familiarities of his private life, 
or enabled to depict the individual shades of taste, temper, habit, 
or demeanour, the portraiture of which gives to biography all its 
personality, and by much the greater part of its interest. How- 
ever eminent the subject of the narrative, however splendid or 
useful his career, however admirable the lesson his life may 
furnish, we demand the more that we shall be admitted to see 
and converse with him, not only in the court suit and ruffles of 
the statesman, or the robe and ermine of the judge, but also in 
the easy undress of in-door and familiar intercourse. Yet one 
of the writers we have already quoted, and who professes to 
speak from personal acquaintance, gives us a delightful, although 
a general, picture of the domestic life, the " household virtues," 
of this admirable nobleman : — " His religion was his governing 
principle ; it was well founded and active ; his piety was rational 
and manly. He was a sincere son of the church of England, 
and ready to maintain her in her just rights and legal posses- 
sions ; he was an enemy to persecution, and had a diffusive, 
general, and Christian charity, which made him a friend to all 
mankind. He was a careful and indulgent father; and as no 
man ever deserved more of his children, no man could be more 
affectionfitely beloved by them : there was something so peculiar 
in this respect, that none seemed to know how to live in such 
friendship with his sons as my Lord Chancellor. The harmony 
which subsisted in his house was a very great pleasure to all 
who beheld it; like the precious ointment to which the Psalmist 
compares such a union, it was not only an ornament to the 
superior parts, but * ran down to the skirts of his clothing ;' it 
was visible among all his domestics. His servants were united 
in an affection for their lord, and a friendship for one another; 
they were restrained in their duty, not by any rash or rigorous 
commands, but by a certain regard to decency and order that 
reigned throughout the family ; every one was so easy in his 
situation, that he was insensible of his dependence, and was 
treated rather as an humble friend." 



LORD TALBOT. 281 

The most pleasing part, also, of Thomson's elaborate poem 
on his patron's death, is that in which he refers to the graces of 
his domestic character : — 

"Still let me view him in the pleasing light 
Of private life, where pomp forgets to glare, 
And where the plain unguarded soul is seen. 
Not only there most amiable, best, 
But with that truest greatness he appeared, 
Which thinks not of appearing ; humbly veiled 
In the soft graces of the friendly scene, 
Inspiring social confidence and ease. 
Say ye, his sons, his dear remains, with whom 
The father laid superfluous state aside. 
Yet swelled your filial duty thence the more, 
With friendship swelled it, with esteem, with love 
Beyond the ties of blood, oh ! speak the joy, 
The pure serene, the cheerful wisdom mild, 
The virtuous spirit, which his vacant hours, 
In semblance of amusement, through the breast 
Infused. * * * * 

I too remember well that mental bowl, 
Which round his table flowed. The'serious there! 
Mixed with the sportive, with the learn'd the plain ; 
Mirth softened wisdom, candour tempered mirth, 
And wit its hone}^ lent, without the sting." 

Lord Talbot did not forget the duties to knowledge and 
literature, which his high and influential station imposed on him. 
He extended a liberal patronage to literary men, in a spirit of 
generous good breeding which honoured him without degrading 
them. The poet Thomson, who was recommended to him by 
his early friend Dr. Rundle, was first employed in the capacity 
of travelling tutor to his eldest son, with whom he visited most 
of the continental courts ; and was afterwards comfortably install- 
ed in the place of Secretary of Briefs, which he might doubtless 
have retained for life, had he not been too proud or too indolent 
to solicit a fresh gift of it from Lord Hardvvicke when he suc- 
ceeded to the chancellorship. The poet warmly extols the 
delicacy of that patronage to which he was himself so much 
indebted : — 

"Unlike the sons of vanity, that, veiled 
Beneath the patron's prostituted name, 
19 



282 LORD TALBOT. 

Dare sacrifice a worthy man to pride, 
And flush confusion o'er an honest cheek ;] 
Obliged when he obliged, it seem'd a debt ^ 
Which he to merit, to the public paid." 

He made it his business to assist at least with his purse, and 
(so far as lie had the power to consult his own wishes) with the 
patronage in his gift, the most meritorious and exemplary of tlie 
clergy, with less regard to considerations of personal or political 
preference than the holder of the Great Seal has often adventured 
to indulge. Stackbouse, the learned and excellent author of the 
History of the Bible, having published proposals for printing his 
theological works by subscription, was invited to dinner by the 
Chancellor, who, after subscribing liberally himself, recommend- 
ed the work so warmly to his professional friends round the 
table that they could not do other than follow his example, so 
that the worthy divine returned home with about a hundred 
guineas in his pocket, a fair beginning of his subscription. Lord 
Talbot indeed would deserve well of the Christian world, if it 
were only on the score of his having put in the way of promo- 
tion, and therefore of more extensive usefulness, the pious, 
learned, and excellent Bishop Butler. This admirable person, 
who was the son of a small tradesman at Wantage, in Berkshire, 
had been solemnly recommended by a younger brother of the 
Chancellor, to whom he had casually become known, to Bishop 
Talbot, from whom he received first the rectory of Houghton-le- 
Skerne, in Durham, and afterwards the valuable living of Stan- 
hope. Lord Talbot, on becoming Chancellor, named Butler as 
his chaplain ; and by his influence he obtained also a prebendal 
stall at Rochester, and the appointment of clerk of the closet to 
Queen Caroline, the sure introduction to episcopal honours. It 
was while he occupied this post that he published his celebrated 
Analogy. 

In one case, indeed, which made no little noise at the time, 
the Chancellor incurred considerable censure in regard to the 
disposal of a bishopric. Even before he attained the woolsack, 
he had strongly solicited preferment for his father's friend and 
his own, Dr. Rundle. The see of Gloucester became vacant 
a few months after he received the seals, and so warmly did he 
interest himself in the doctor's behalf, that the conge d'elire for 



LORD TALBOT. ^83 

his advancement to the bishopric was issued and gazetted, the 
election took place, and nothing remained to be completed but 
the consecration, when objections were suddenly interposed to 
the appointment, on the ground of the alleged heterodoxy of 
Rundle's religious opinions, by several of the bishops, more par- 
ticularly Gibson, Bishop of London. A. controversy of no small 
bitterness ensued between the partisans of the disputants ; the 
Chancellor, however, after contesting the matter for some time 
with his right reverend opponents, was obliged to yield, and the 
doctor was consoled with the richer mitre of Derry, which be- 
came vacant about the same time ; the same character, as one 
of the angry pamphleteers remarked, being deemed good enough 
to minister to the spiritual interests of an Irish diocese, which 
was proscribed as unfit to preside over an English one. Dr. 
Rundle, many years afterwards, made a splendid acknowledg- 
ment of the debt of gratitude he owed his patron's memory, by 
bequeathing to his son a legacy of ^25,000. 

The Chancellor's general beneficence was warm, compre- 
hensive, and unostentatious. His seat at Barrington was at 
once the scene of a liberal and rational hospitality, and the cen- 
tre of a difi'usive and well-regulated charity. After his death, a 
long list of persons, the regular pensionaries of his private 
bounty, was found among his papers. 

By his lady, already mentioned, whom he lost so early as the 
year 1720, Lord Talbot had five sons : Charles, who died un- 
married in 1733 ; William, who succeeded him in the title, and 
was created an Earl in 1761 ; John, who went to the bar, satin 
Parliament successively for Brecknock and Ilchester, and became 
a puisne justice of the Chester Circuit; Edward, who died an 
infant; and George, an exemplary and pious clergyman, who 
preferred the quiet exercise of his duties on a retired Glouces- 
tershire living to the see of St. David's, which was ofifered to 
him in 1761. The second Lord Talbot went into warm oppo- 
sition to Sir Robert Walpole's administration, and gained con- 
siderable repute as a spirited and fluent parliamentary speaker. 
One of his speeches, in particular, in which he opposed with 
much vehemence Lord Hardwicke's proposition for extending 
the penalties of treason, denounced against those who should 
hold correspondence with the family of the Pretender, to the 



284 LORD TALBOT. 

corruption of blood in the descendants of tlie oflender, may be 
instanced as a piece of vigorous and effective declamation. Ho- 
race Walpole describes him as " a lord of good parts, only that 
they had rather more bias to extravagance than sense," and as a 
sworn enemy to the Chancellor (Hardvvicke) on the score of 
some family jealousies. 

Lord Talbot's younger brother, Edward, whom we have be- 
fore passingly mentioned, a clergyman of great worth and talents, 
died in the year 1720, at tlie age of twenty-nine, being then 
Archdeacon of Berks, and having filled also the honourable ap- 
pointment of preacher at the Rolls. He recommended to the 
patronage of his father, with his dying breath, three of his cleri- 
cal friends, who all well justified the preference of his friend- 
ship, and every one of whom, although then unbeneficed, found 
that recommendation the first step towards a mitre : — Seeker, 
afterwards primate ; Benson, who became bishop of Gloucester, 
(both of them raised to the bench in 1734, doubdess through the 
good ofiices of the Chancellor) ; and Bishop Butler. His post- 
humous daughter and only child. Miss Catharine Talbot, acquired 
considerable celebrity in the literary world for her talents and 
accomplishments, and was one of the contributors to the Athe- 
nian Letters, and a frequent writer in the periodical publications 
of her time. His widow survived him for the remarkable 
period of sixty-three years, dying in the year 1784, at the great 
age of ninety-five. 

We will conclude this short and necessarily very imperfect 
sketch by a few extracts from a well-expressed summary of the 
merits and character of Lord Talbot, which we find in a con- 
temporary publication,* probably from the pen of Dr. Birch, to 
whom he was personally well known : 

" It is a maxim generally received, and generally true, that 
difficult and unquiet times form those great characters in life 
which we view with admiration and esteem. But the noble lord 
to whose merit we endeavour to pay this acknowledgment, ob- 
tained the honour and reverence of his country at a season when 
no foreign or domestic occurrence occasioned any remarkable 

* The « General Dictionary," (1739). 



LORD TALBOT. 285 

event. Therefore, as facts cannot be related from which the 
reader may himself collect a just idea of this amiable and al- 
most unequalled man, ivords must faintly describe those extra- 
ordinary qualities which combined to complete his character ; 
and though future generations may imagine those virtues height- 
ened beyond their true proportion, it is a suspicion not to be 

apprehended from the present age In apprehension 

he so far exceeded the common rank of men, that he saw by a 
kind of intuition the strength or imperfection of any argument; 
and so penetrating was his sagacity, that the most intricate and 
perplexing mazes of the law could never so involve and darken 
the truth as to conceal it from his discernment. As a member 
of each House of Parliament, no man ever had a higher defer- 
ence paid to his abilities, or more confidence placed in his pub- 
lic spirit; and so excellent was his temper, and so candid his 
disposition in debate, that he never offended those whose argu- 
ments he opposed As no servile expedients raised him 

to power, his country knew he would use none to support him 
in it. When he could gain a short interval from business, the 
formalities of his station were thrown aside : his table was a 
scene where wisdom and science shone, enlivened with elegance 
and wit. There was joined the utmost freedom of dispute with 
the highest good-breeding, and the vivacity of mirth with the 
primitive simplicity of manners. When he had leisure for ex- 
ercise, he delighted in field sports ; and even in those trifles 
showed that he was formed to excel in whatever he engaged in ; 
and had he indulged himself more in them, especially at a time 
when he found his health unequal to the excessive fatigues of 
his post, the nation might not yet have deplored a loss it could 
ill sustain. Though removed at a time of life when others but 
begin to shine, he might justly be said satis et ad vitam et ad 
gloriam vixisse; and his death united in one general concern a 
nation which scarce ever unanimously agreed in any other par- 
ticular." 

The maxim is assuredly no longer true, that 

"Men's evil manners live in brass ; their virtues 
We write in water :" — 



286 LORD TALBOT. 

the ofTice of modern biography is more frequently to engrave the 
tablets of its heroes with such a crowd of excellences, that no 
room remains for the exhibition of their frailties. Lord Talbot 
was even more fortunate ; for his failings appear to have been 
almost as much forgotten during his life, as his virtues were ex- 
tolled over his tomb. 



LOUD HARDWICKE, 



Of the numerous individuals whom the profession of the law 
has raised from indigence and obscurity to the possession of 
wealth and honours, there are few, if any, who at the outset of 
their career have had to contend against more powerful obstacles, 
or who have surmounted them with greater success, than Philip 
Yorke, afterwards Earl of Hardwicke and Lord High Chan- 
cellor of England. His father was an attorney at Dover, with- 
out much, or at least without lucrative practice ; for though 
before his death he had provided for his two daughters, by 
marrying them, the one to a dissenting minister, the other to a 
tradesman or small merchant, he was reduced to such poverty as 
to be wholly incapable of affording his only son the means of 
entering the profession of which he afterwards became such a 
distinguished ornament. The same difficulties, however, which 
are sufficient to confound and overwhelm an irresolute mind or 
a desponding temperament, often prove nothing more than 
wholesome stimulants to the energies of a vigorous intellect. 
For as, in mechanics, the additional force applied to counteract 
an occasional resistance against tlie progress of a body, imparts 
to that body a momentum which urges it on with increased 
velocity after the resistance is overcome ; so the mental powers, 
aroused for the purpose of struggling against adversity, continue 
to exert their influence after the causes which first called them 
into action have ceased to exist. Thus the necessity of com- 
bating impediments in the early part of life materially conduces 
in many instances to eventual success ; and it is possible that 
Yorke, like many others of his own and indeed of every pro- 
fession, may have been, in a great measure, indebted for his 
advancement to the very obstacles which might at first appear a 
bar to all hope of it. 



288 LORD HARDWICKE. 

He was born -at Dover, on tlie 1st of December, 1690. 
Being designed for his father's profession, and his slender means 
rendering it expedient for him to lose no time in qualifying 
himself for it, he was not suffered to remain till a late age at 
school. Tiie person to whose care his education was entrusted 
was one Mr. Samuel Morland, a man of learning, who kept a 
school of' some reputation at Bethnal Green. But whatever 
advantages in point of classical instruction Yorke might have 
enjoyed under his direction, he was not allowed sufficient time 
to make much progress. After he had attained rank and celebrity 
as a lawyer, there were many who asserted, and affected to 
believe that he had during his youth been conspicuous for the 
ardour and the success with which he had devoted himself to 
the study of ancient literature. The tale may have been invented 
merely to flatter the person of whom it was told, or perhaps to 
support the credit of classical learning, by representing it as 
instrumental in raising him to eminence in his profession : in 
either case there certainly could have been very little foundation 
for it. That Yorke was distinguished for proficiency in classical 
acquirements beyond the rest of his schoolfellows, there is not 
the least reason to doubt ; and it is even probable that an active 
mind like his might afterwards take pleasure in recurring occa- 
sionally to the pursuit he had perhaps quilted with regret; but 
such imperfect opportunities are not sufficient to form a finished 
scholar, and those who have represented him as such certainly 
ought not to be accounted the most judicious of his panegyrists, 
since they suppose him to have possessed advantages with which, 
in fact, the vigour and acuteness of his intellect enabled him in a 
great degree to dispense. 

It has been said, that while he was prosecuting his studies for 
the bar, he contributed to the Spectator the letter signed Philip 
Homebred, which appeared as the paper for the 28th of April, 
1712. The story appears doubtful, and probably originated in 
some mistake of names, since we find that one of the editors of 
the Spectator affirms it to have been written by him while a stu- 
dent at Cambridge, whereas it is very well known that he never 
was a student at either of the universities. However, suppos- 
ing him to have been the real author of the letter, there certainly 
is nothing in it, either in point of style or matter, that gives par- 



LORD HARDWICKE. 289 

ticular indications of literary taste or talent; and those who 
pretend to discover in such a composition the character of early- 
genius, would probably never have thought of attributing any 
such quality to it, had not the eminence of its presumed author 
suggested the idea. A circumstance which goes much farther 
towards establishing the fact of his early display of talent, is the 
high opinion of his abilities entertained by his schoolmaster. 
Two letters have been preserved, written in Latin to Yorke by 
Mr. Morland. The first of them is dated 1706, the second 
1708, and even so early as the former period, the preceptor, 
after dwelling with affectionate complacency on the talents of 
his disciple, confidently predicts his future celebrity, and declares 
that to have been the happiest day of his life wherein the culti- 
vation of so happy a genius was first committed to his charge : 
— " Non mirandum est si futuram tui nominis cehbritatem meus 
presagit animus. Quas tantopere olim vices meas dolui, eas 
hodie gratulor mihi plurimum cui tale tandem contigerit ingenium 
excolendum. Nullum unquam diem gratiorem mihi illuxisse in 
perpetuum reputabo, quam quo te paler tuus mihi tradidit in 
disciplinam." This letter is addressed, " Juveni proestantissimo 
Philippo Yorkio." 

His first initiation into the study of the law took place under 
the auspices of an eminent attorney named Salkeld, who had 
been agent for his father, and was prevailed upon to take the 
son into his office upon very easy terms. The coincidence of 
names afterwards occasioned the report that he had for his 
instructor Serjeant Salkeld. This is an error: but if we are to 
judge of a system of education by the fruits it produces, we 
naay safely assert that it would have been impossible for him to 
have been more advantageously situated for acquiring a know- 
ledge of his profession than in the office of Mr. Salkeld the 
attorney, since we know that in that very office, and nearly 
about the same time, were Jocelyn, afterwards Lord Chancellor 
of Ireland ; Parker, who became Chief Baron of the Exche- 
quer; and Strange, who died Master of the Rolls. Among 
such fellow-students as these, it was likely that there would be 
severe and arduous competition ; and it is no trifling testimony 
in favour of the zeal, the assiduity, and the talent of Yorke, that 
he recommended himself to the favour and esteem of a man who 



290 LORD IIARDWICKE. 

must have been in the habit of witnessing a constant and unre- 
mitting display of all these qualities. So steady, however, was 
his perseverance in study, and so rapid his progress in the know- 
ledge of the law, that Mr. Salkeld did not fail to distinguish him ; 
and with a view of procuring him a wider field for the future 
exercise of his abilities, he caused him to be entered of the Mid- 
dle Temple, as a preparatory step towards the bar. The date 
of his admission in the books of the Society, is 25th November, 
1708 ; he being then in the eighteenth year of his age. 

It does not appear that the talents of the young clerk were 
equally well appreciated by the wife of Mr. Salkeld, or possibly 
she conceived that, however distinguished they might be, they 
ought to be no hindrance to the exercise of the more homely 
qualities of personal strength and agility, which nature had con- 
ferred upon Yorke, and which she conceived the law had placed 
at her disposal. Making, therefore, a full use of her assumed 
right as a mistress over her husband's apprentice, she was in the 
constant habit of dispatching him from her house in Brook- 
street, Holborn, to the neighbouring markets, either for the pur- 
pose of carrying home her own bargains, or of acting in the 
double capacity of purchaser and porter. These journeys 
occasionally extended as far as Covent-garden, so that her emis- 
sary had to return through some of the crowded streets of 
London, bearing under his arm, perhaps, the ignoble burthen of 
a basket of fruit or a bundle of green vegetables. Such humilia- 
tion was not to be borne patiently, especially when the messenger 
had begun to hold a certain rank in the office of his master, and 
no doubt, also, to attach some degree of importance to his per- 
sonal appearance, which, it must be allowed, was not likely to be 
benefited by the appendages just mentioned. But what was to 
be done ? The lady laid claim to his services ; and the terms 
on which he had been received an inmate of her house were 
such as might authorize her to demand of him some such com- 
pensation for the expense of his maintenance. In this awkward 
dilemma, Yorke, with great presence of mind, hit upon an 
expedient which had the desired efliect, both of saving appear- 
ances for the time, and of putting a stop to his errands in future. 
He proceeded as usual to market, and made his purchases as 
before ; but, on his return, did not scruple to indulge himself and 



LORD HARDWICKE. 291 

his packages with the accommodation of a hackney-coach. It 
may be supposed that the fare of this vehicle made a conspi- 
cuous item in the bill of charges which, on his arrival at the 
house, he was in the habit of presenting to Mrs. Salkeld ; and 
that notable lady, wisely considering that it was a flagrant 
instance of bad housewifery to pay more for the carriage of her 
goods than the value of the goods themselves, resolved thence- 
forward to choose a messenger who would be likely to be con- 
tent with a less expensive mode of conveyance. 

It was after he had become a student of the Middle Temple, 
that Yorke formed an acquaintance to which he may be said to 
have been mainly indebted for the unprecedented rapidity of his 
advancement when called to the bar. It was altogether a re- 
markable illustration of Roger North's argument in behalf of the 
advantages to be derived from connexions originally formed 
from, casual meetings in the hall of an Inn of Court. During the 
time when he was keeping his terms, it was his lot to dine more 
than once at the same mess with Mr. Parker, one of the sons of 
Lord Chief Justice Macclesfield ; and his conversation was so 
agreeable, as to produce from his neighbour an invitation to his 
father's house. It is said that, about the same time, the Chief 
Justice, being desirous of securing for his sons a companion 
whose legal knowledge might be an assistance to them in their 
studies, applied to Mr. Salkeld to point out some young man of 
competent abilities for that purpose, and that Mr. Salkeld warmly 
recommended his pupil. Whether this took place before or after 
the first introduction of Yorke to his Lordship does not appear ; 
but it seems most probable that the inquiry was made respecting 
Yorke himself, in consequence of his having been presented to 
Lord Macclesfield. At all events, it is very certain that the 
young student had not long obtained a footing in the house of 
the legal dignitary, before he secured to himself a first-rate place 
in his good graces. He was at that time, as indeed he remained 
long afterwards, distinguished for a certain pliancy, if not sup- 
pleness of manner, which possibly went far towards finding him 
favour in the eyes of his new patron. He had also the advan- 
tage of a handsome person, which he improved by strict atten- 
tion to his dress, insomuch that some of his contemporaries 
report him to have been the handsomest young man in England. 



292 LORD HARDWICKE. 

Whether these minor recommendations, or the more elevated 
qualities of talent and proficiency in his studies, had the greater 
weight with Lord Macclesfield, the favourable impression he had 
first made was so well improved, that the result was a degree of 
friendship, and of almost paternal attachment, to which, as has 
already been intimated, the success of Yorke's after career might 
chiefly be attributed. 

On the 27th of May, 1715, Yorke was called to the bar. Pos- 
sessed as he was of much more ample stores of legal knowledge 
than fall to the lot of most lawyers of his years, and having the 
cordial support of a very eminent solicitor, besides the avowed 
favour and patronage of Lord Macclesfield, he acquired at the 
very outset an extensive practice ; and it is not to be supposed 
that his rapid and extraordinary success was looked upon with- 
out jealousy by the other members of the bar. Indeed, the 
favouritism of Lord Macclesfield was so conspicuous even in 
court, that they might well feel themselves offended and aggrieved 
by it. Serjeant Pengelly, one day, was so much irritated by 
an observation which fell from his Lordship, that he threw up 
his brief, and openly protested he would no longer practise in a 
court where, it was evident that Mr. Yorke was not to be an- 
swered. Some time after the resignation of the great seal by 
the Earl of Cowper, Lord Macclesfield was promoted to the 
woolsack (1719) ; and his influence, no longer confined to a court 
of law, was exerted to procure his young favourite a seat in the 
House of Commons. Accordingly, within four years after his 
first appearance in Westminster Hall, Yorke took his seat as 
member for Lewes, in Sussex, the whole expenses of his elec- 
tion being defrayed by the ministry, among the partisans of 
whom he of course enrolled himself. 

The Bench did not fail to share in the astonishment occa- 
sioned by his extraordinary professional success. Mr. Justice 
Powys, in particular, was amazed at such a phenomenon. His 
Lordship was much more notorious for certain peculiarities of 
manner and speech, than for penetration or clearness of intel- 
lect; so much indeed was he generally thought to be deficient in 
the latter qualification, that the Duke of Wharton, inditing a 
copy of verses, wherein he adopted the hackneyed mode of ex- 
pressing his afieclion for his mistress, by protesting that when 



LORD HARDWICKE. .293 

this, and that, and the other impossible event should occur, then 
and no sooner should he cease to adore her, did not hesitate to 
include among his enumeration of impossibilities, that of Judge 
Powys summing up a cause without a blunder. This ornament 
of the bench, then, being determined to discover, or rather think- 
ing he had already discovered, the cause of Yorke's success, ap- 
pealed to the successful barrister himself, to learn whether he 
had arrived at the right solution of the mystery. " Mr. Yorke," 
said he, at a dinner party composed chiefly of members of his 
own profession, " I humbly conceive you must have published 
some book or other, or must be on the point of publishing one ; 
for look, do you see, there is scarcely a case before the court, 
but you hold a brief for either plaintiff or defendant." It may 
readily be supposed this explanation surprised the person ap- 
pealed to, no less than the extraordinary circumstance it was 
meant to account for had at first surprised the judge. Yorke, 
however, not perhaps altogether displeased at the opportunity 
of quizzing his Lordship, replied " that in fact it was his in- 
tention to publish a book." Powys, all elate with this dis- 
covery, eagerly demanded to be informed of the subject. The 
other, keeping up the joke, answered that he was putting Coke 
upon Littleton into verse. A specimen was now called for. 
Yorke endeavoured to excuse himself, on the plea that he had 
made little progress in his work, but his Lordship would hear 
of no denial. Accordingly, finding himself compelled to recite 
a distitch or two, he could not refrain from taking the opportu- 
nity of ridiculing some of the importunate dignitary's peculiari- 
ties of phraseology, and immediately rapt out with solemn 
emphasis : — 

«'He that holdeth his lands in fee, 

Need neither to shake nor to shiver, 

I humbly conceive; for look, do you see, 

They are his and his heirs for ever." 

The foundations of his fortune were now so securely laid, 
that he might without imprudence think of contracting a matri- 
monial alliance. At the house of Sir Joseph Jekyll, then 
Master of the Rolls, he had met and admired the young widow 
of Mr. William Lygon, of Madersfield, in Somersetshire. She 



294 LORD IIARDWICKE. 

was a niece of Lord Somers, who was her mother's brother, and 
also of Sir Joseph, who had married another of his Lordship's 
sisters. Her father, Mr. Charles Cocks, was a country gentle- 
man of good estate, residing at Worcester ; and to him the suitor 
was referred for liis consent to the match. Accordingly, having 
surrendered his chambers in the Temple (May 1719), in con- 
templation of the approaching union, to which he could see no 
probable obstacle, he shortly after presented himself at Worces- 
ter, and made known his errand to the gentleman whom it was 
his wish to call father-in-law. Mr. Cocks received him with 
politeness, and having perused the recommendatory letter of his 
brother-in-law. Sir Joseph Jekyll, wherein Mr. Yorke was repre- 
sented as a highly eligible match for his daughter, he forthwith 
requested to see what in his opinion constituted the main evi- 
dence of the aspirant's eligibility, namely, his rent-roll. To his 
infinite surprise, Mr. Yorke had no such document to show. 
The case seemed an extraordinary one ; and not being able to 
understand what qualities could make amends for the want of 
land and tide-deeds, he immediately wrote to the Master of the 
Rolls, demanding to know on what ground he could presume to 
recommend for a son-in-law, a man who had no rent-roll to pro- 
duce. Sir Joseph Jekyll, in his answer, made it clear that it was 
possible to hold some rank in society, and even to possess 
some wealth, without being master of those parchments which 
the country gentleman seemed to consider the only undeniable 
tokens of fortune and respectability ; and he concluded by advis- 
ing Mr. Cocks not to hesitate a moment in accepting the proposal 
made him, as Yorke would at that time consent to marry his 
daughter with a portion of six thousand pounds, whereas in 
another year, he would probably not be contented with less than 
three or four times that sum. This explanation had the desired 
effect, and the marriage accordingly took place. 

The connexion derived from this alliance probably influenced 
Yorke in the choice of a circuit, his practice having been till 
that period confined to Westminster Hall. The next spring he 
appeared upon the western circuit, and in spite of his recent 
standing, was employed there as extensively in proportion as he 
had been in London. 

That this should excite the envy as well as the surprise of 



LORD HARDWICKE. 295 

the bar, is not to be wondered at. But new favours of fortune 
awaited Yorke, such as even the penetration of Mr. Justice 
Powys might scarcely have foreseen as the consequences of the 
forthcoming work. He was called up to town, before he had 
completed his first circuit, to be made Solicitor-General* (March 
23rd, 1720), being thus, at the early age of twenty-nine, and 
within five years after his call to the bar, promoted to an office 
which is generally supposed to require not only approved talent 
and knowledge of the law, but a much greater share of experi- 
ence than can fail to the lot of one so young, both in years and 
practice. Much dissatisfaction was testified among the seniors 
of the bar at this appointment, the more eminent among them, 
not without reason, considering they had much stronger claims 
to the possession of the vacant post; and those who had not 
the same personal reasons for displeasure being still nettled, at 
thus finding themselves outstripped in the race of preferment by 
so youthful a competitor. Besides the envy and the odium 
which so marked an instance of favouritism could not fail to 
awaken among his professional brethren of the bar, the new 
Solicitor-General had to contend against another and a more 
serious prejudice, the mistrust of his clients. However he might 
have distinguished himself during the former part of his career, 
still his employment had been of course almost entirely that of 
a junior counsel ; and though in that capacity he had never 
failed of discharging his duty, both with credit to himself and 
advantage to the party in whose cause he was retained, still it 
was to be supposed that many who had been glad to avail them- 

• The following is a cop}'' of the letter written on this occasion, by the 
Chancellor to Yorke. It is directed to him at Dorchester: — 
'« Sir, 
The King having declared it to be his pleasure that you be his soli- 
citor-general, in the room of Sir William Skimpson, who is already 
removed from the office, I, with great pleasure, obey his majesty's com- 
mands, to require you to hasten to town immediately upon the receipt 
hereof, in order to take that office upon you. I heartily congratulate 
you upon this first instance of his majesty's favour, and am, with great 
truth and sincerity, 

Sir, 
Your faithful and obedient Servant, 

Parkek, C." 



296 LORD HARDWICKE. 

selves of his talents when they were backed by the experience 
of older men, would naturally hesitate before they committed 
their interests entirely to the custody of an advocate of five 
years' standing. Professional etiquette forbade him to appear in 
a cause except as the leading counsel ; and those who best knew 
the advantages of experience in a leader, were most reluctant to 
engage him as such. Thus, nothing but a very extraordinary 
share of ability and of legal knowledge could have saved him 
from the loss of his private practice; and had he not found op- 
portunities of showing that he possessed both, his appointment 
to the solicitorship, far from being the source of additional hon- 
our and emolument, could not but have been very materially 
prejudicial to his pecuniary interests, as well as to his reputation. 
It was not long, however, before he made it evident that he was 
equal to the duties of his new station. His talents, instead of 
being lost in the wider sphere wherein they are called upon to 
act, expanded in proportion as the demands upon them were 
greater. By these means, the prejudice which had at first been 
conceived against him, on account of his youth, was gradually 
dispelled, and before long his practice became more extensive 
than ever; the marked favour of the Chancellor, and the affabil- 
ity of his own deportment, particularly his courtesy towards the 
attorneys of the court, contributing, no doubt, as well as his 
acknowledged ability, to render him a popular counsel. 

In the discharge of his public duty as Solicitor-General, he 
was not less eminently successful than in the management of 
private causes. The trial of Christopher Layer for high treason, 
in November 1722, afforded him an opportunity, which he did 
not neglect, of making a splendid display of his powers, both as 
a lawyer and an orator. The task of answering the legal objec- 
tions urged in favour of the prisoner was delegated to him. His 
reply, which was of course in great measure unpremeditated, 
occupied two hours. Very little of it, except the heads of the 
arguments he employed, is preserved in the State Trials ; but 
we are assured that the manner in which, after recapitulating 
and confuting all the topics that had been advanced in behalf of 
the accused party, he finished by summing up the whole body 
of the evidence, so as not to leave a doubt on the minds of either 
the jury or the court, was the theme of universal admiration : 



LORD HARDWICKE. 297 

his speech was, indeed, allowed to be a masterpiece of argumen- 
tative eloquence. Layer, it is well known, was condemned to 
be hanged ; but the execution of the sentence was deferred from 
time to time until the spring of the following year, in the hope 
that he might be induced to give evidence against the Bishop of 
Rochester, and certain other accomplices supposed to be impli- 
cated in the plot laid for the restoration of the Pretender. 'J'his 
expectation being disappointed, a bill of attainder was brought in 
(May, 1723) against the suspected parties. Bishop Atterbury 
was deprived of all his offices and sent into banishment; John 
Plunkett and George Kelly, the other accessories, were sen- 
tenced to confinement during his Majesty's pleasure. The So- 
licitor-General is said to have displayed considerable talent in 
bringing forward in parliament the bill against the last-mentioned 
of these persons, who was imprisoned in the Tower, whence he 
contrived to make his escape about thirteen years afterwards. 

Yorke had received the honour of knighthood a few months 
after his appointment to the office of Solicitor-General. In 
February, 1724, that is, after he had retained the solicitorship 
somewhat less than four years, he was promoted to the rank of 
Attorney-General, being succeeded in his former office by Sir 
Clement Wearg. He was now fully launched into the stream 
of preferment, and could dispense for the future with the favour 
and patronage of the Chancellor, to whom he had hitherto been 
indebted for his advancement. It was well for him that this 
was the case ; for he had been little more than a year established 
in his new office, when the gross corruption of Lord Maccles- 
field brought on the impeachment in consequence of which he 
was deprived of the Great Seal. As Attorney-General, it was 
Sir PhiUp Yorke's duty to assist the managers of the House of 
Commons in making good their charge. But his intimacy and 
connexion with the accused were so well known, that he suc- 
ceeded, though not without some difficulty, in procuring himself 
to be excused from so painful a task ; and though decency for- 
bade him to undertake the defence of his former patron, or, in- 
deed, to appear at his trial in any other capacity than that of his 
principal accuser, he found means to reconcile decorum with 
gratitude, by rebutting in the House of Commons the personali- 
ties of the fallen dignitary's most inveterate enemies, particularly 

20 



298 LORD IIARDWICKE. 

of Serjeant Pengelly. Lord Macclesfield was, however, fortu- 
nate that he lived in an age when very many members of either 
house had excellent reasons for regarding corruption as by no 
means an unpardonable sin ; so that the clamour against him 
was not so loud as his frauds and his extortions were well wor- 
thy to raise. The fine of thirty thousand pounds, which was 
the punishment awarded him by his fellow peers, was but a 
small portion of the sum he had amassed by his peculations ; 
and to the disgrace of the time, his conviction neither debarred 
him from the countenance of the great, nor even, if report speaks 
true, from the favour of the court. 

Of Sir Philip Yorke's general conduct as one of the law offi- 
cers of the crown, Lord Chesterfield speaks in the following 
terms : — " Though he was solicitor and attorney-general, he was 
by no means what is called a prerogative lawyer. He loved the 
constitution, and maintained the just prerogative of the crown, 
but without stretching it to the oppression of the people. He 
was naturally humane, moderate, and decent; and when, by his 
employments, he was obliged to prosecute state criminals, he 
discharged that duty in a very difl^erent manner from most of his 
predecessors, who were too justly called the blood-hounds of the 
crown." Horace Walpole has given him a very different cha- 
racter; but he has taken so little pains to disguise his prejudices 
with regard to most of those whom he is pleased to vituperate, 
and in particular his rancorous and inveterate hatred against 
Yorke, that his testimony would be of little or no weight, even 
were it not contradicted by irrefragable evidence, and in some 
instances by his own admissions. Thus, in speaking of an after- 
period of this great lawyer's life, when, as Lord High Steward, 
he presided at the trial of the rebel lords who had taken arms 
in the service of the Pretender, he tells us that his demeanour 
towards the noble prisoners was that of a low-born upstart, 
proud of an opportunity to evince his loyalty by insulting his 
fallen superiors. But this accusation is entirely disproved by the 
very full and minute report of the proceedings, wherein, though 
every word he uttered seems to be noted down with scrupulous 
accuracy, we find nothing to corroborate the charge. It is evi- 
dent that Lord Orford was not sufliciently on his guard against 
the danger to which those who deviate from truth are continually 



LORD HARDWICKE. 299 

running the risk of exposing themselves, namely, that of unwa- 
rily betraying their own general want of veracity, by an occa- 
sional adherence to real facts, wholly incompatible with the 
imaginary occurrences they have chosen to invent. In one part 
of his memoirs, for example, he plainly declares of Lord Hard- 
wicke, that " in the House of Lords he was laughed at, in the 
cabinet despised :" but the very same work affords us many 
previous instances, which, by the author's own showing, make 
it very plain that his opinion was of considerable weight in both 
plases. This is a tolerable illustration of the proverbial apho- 
rism, that a good memory is particularly necessary to those who 
have little regard to veracity. 

Although Yorke had owed his first introduction into parlia- 
ment principally to the offices of his early patron. Lord Maccles- 
field, it is believed that he was more directly indebted for it to 
the favour of the Duke of Newcastle. At all events, it is certain 
that he attached himself very early in his career to this powerful 
nobleman, of whose influence in the councils of the nation he 
did not fail afterwards to avail himself. A connexion with the 
family of the Pelhams led to one with Sir Robert AValpole, so 
that he secured to himself the support of a party which, for his 
singular good fortune and its own, though perhaps not equally so 
for that of the country, contrived to keep itself in power till he 
had arrived at an age when power was, or might well be, in- 
different to him. Thus, while some of his legal competitors 
were impoverished by the heavy charges of their elections, his 
own fortune never suffered from any such cause of expenditure. 
Whether he sat for Lewes or for Seaford, he was invariably re- 
turned under the auspices of the ministry, without either cost or 
trouble. 

After having held the office of Attorney-General during nearly 
ten years, an opportunity offered itself for a higher promotion. 
The Great Seal was resigned in October, 1733, by Lord King, 
who had succeeded the Earl of Macclesfield on the woolsack : 
and the chief justiceship of the King's Bench was vacant at the 
same time, by the death of Lord Raymond. It was generally 
expected that, according to the usual forms of precedence, the 
higher of these offices would be offered to Yorke, and that the 
place of Chief Justice would fall to the share of Mr. Talbot, 



300 LORD HARDWICKE. 

llie Solicitor-General. It proved, however, otherwise. Mr. 
Talbot, having devoted himself more exclusively than his col- 
league to Chancery practice, was held to be, if possible, still 
more eligible as a Chancellor than the Attorney-General, the 
duties of whose office had latterly caused him to be employed 
much more generally in the common-law than in the equity 
courts, and had consequently qualified him in a greater degree 
for presiding in the King's Bench. Talbot was ambitious, and 
so no doubt was Yorke ; but the ambition of the latter was very 
much qualified and tempered by prudence, and if he thirsted 
after eminent dignities, he was still more desirous that they 
should be permanent and secure. Now the chancellorship, he 
well knew, though a place of higher dignity and emolument 
than that of Chief Justice, was held by a much more precarious 
tenure. He was, consequently, not indisposed to give up his 
pretensions to a seat on that unsteady pinnacle of legal prefer- 
ment, the woolsack ; the rather that he would resign them in 
favour of one with whom he lived on terms of the strictest 
friendship and intimacy. There only remained one obstacle to 
be got over. The predominant foible of Yorke's character was 
the love of money ; and it was with difficulty he could make up 
his mind to forego his claims upon one place, for the sake of 
putting up with another much less lucrative. This objection 
was easily obviated by Sir Robert Walpole. He offered to in- 
crease the salary of Yorke, as Chief Justice, from two thousand 
to four thousand pounds a year (the salary then, and indeed till 
very lately, forming only a small portion of the emoluments of 
the office) ; and upon Yorke's refusing to accept this augmen- 
tation as a distinction personal to himself, it was made permanent 
to his successors on the bench. This compromise, together with 
the promise of a peerage, entirely reconciled the Attorney- 
General to the loss of the chancellorship, which was accord- 
ingly conferred on the Solicitor-General, with the rank of Lord 
Talbot. Yorke took his seat in the King's Bench, and was 
shortly afterwards called to the upper house by the title of Baron 
Hardwicke, of Hardwicke, in the county of Gloucester. 

He retained the office of Chief Justice nearly three years and 
a half (7, 8, 9, and 10 Geo. 2), during which period he did not 
fail to add largely to his former reputation. His colleagues in 



I 



LORD HARDWTCKE. 301 

office were Lee, (who succeeded him as Chief Justice,) Probyn, 
and Page. The cases argued and adjudged by them have been 
collected and published by Mr. Lee, of Gray's Lin, whose single 
volume might serve as an honourable monument of Lord Hard- 
wicke's judicial ability, were there no other testimony of it on 
record. Not that any but a very imperfect idea can be derived 
from such a publication as tliis, of the copiousness of argument, 
or the elegance of illustration, much less of the graces of manner 
and diction, for which we are assured the Lord Chief Justice 
was so eminently conspicuous. Of the extent of his legal 
knowledge, however, and the acuteness of his intellect, this book 
contains very sufficient evidence. Lideed, to preserve the sub- 
stance, and, as it were^ to condense the essence of the legal argu- 
ments employed, has been, as it certainly deserved to be, the 
chief object of the author of these reports ; though he might, 
perhaps, without prejudice to this the most important part of his 
task, have bestowed more attention on the minor accessories of 
uniformity of arrangement and of style. The cases bear evi- 
dent marks of being not only written at different times, which of 
course they necessarily must be, but, in some instances, pub- 
lished from the hasty notes taken in court, without the degree of 
care in the revision which would have been necessary to reduce 
them to the same uniform standard of conciseness or develop- 
ment. Li some Lord Hardwicke is made to deliver his judgment 
in the first person, in others he speaks in the third ; and some, 
as for example that of Holmes v. Gordon, are reported with such 
evident haste and negligence, that the first person and the third 
are indiscriminately employed. Perhaps the best specimens, 
and those which may be supposed to give the most distinct idea 
of Lord Hardvvicke's style, are tlie cases in which he delivers 
the opinion of the Court; such, for instance, as those of Moor 
v. The Mayor and Corporation of Hastings, and the King v. 
The Inhabitants of Glastonbury, both delivered in Hilary term, 
10 Geo. 2, a very short time before his removal from the Court 
of King's Bench. These cases are also to be found in Sir 
John Strange's Reports ; but as that work comprises, within the 
compass of two volumes, the proceedings of the King's Bench, 
Chancery, Common Pleas, and Exchequer, from the early part 



302 LORD HARDVVICKE. 

of George the First's reign to 21 Geo. 2, they are, of course, 
reduced according to a much more abridged scale. 

Lord Hardwicke was so well satisfied with his situation as 
Chief Justice of the King's Bench, which, indeed, he fihed with 
no less honour to himself than advantage to the country, that, 
upon tlie death of Lord Talbot (February 14th, 1737), he testi- 
fied considerable reluctance to resign it for the chancellorship. 
Sir Robert Walpole was anxious to have him placed on the 
woolsack, and he combated all the objections of the unwilling 
judge, with the earnestness of a man bent on carrying his point. 
Still his arguments appeared to produce little or no effect. The 
expediency of giving up that which was certain and secure, for 
the sake of being put in possession of what was unstable and 
precarious, could not be made clear to the comprehension of the 
Chief Justice, and he persisted in declaring himself averse from 
the change. The minister had exhausted all his topics of per- 
suasion. He now appealed to the jealousy of his listener, a 
weakness of which he well knew him to be very susceptible, 
and threatened, in case of his ultimate refusal, to give the great 
seal to the eminent Chancery barrister, Mr. Fazakerly. Lord 
Hardwicke, half alarmed, and half inclined to doubt whether Sir 
Robert Walpole was in earnest, represented to him that Faza- 
kerly was without question an avowed Tory, and for aught he 
knew a Jacobite. "I am very well aware of that," coolly re- 
plied the experienced maker of political proselytes, " but if by 
one o'clock" (laying his watch upon the table) " you have not 
accepted my ofTer, by two, Fazakerly shall be lord keeper of the 
great seal, and one of the staunchest Whigs in England." This 
stroke was decisive. The given time had not expired before 
Lord Hardwicke had made up his mind, and consented to be 
elevated to the highest judicial dignity in the country. One of 
the chief causes of his reluctance to quit his post in the King's 
Bench at that particular period, was, that the office of chief 
clerk of that court was then expected shortly to become vacant"^ 
and as the Chief Justice had the power of granting it for two 
lives, by retaining his place he would be enabled to make a 
handsome provision for some member of his own family. Sir 
Robert Walpole was willing to do away with this objection, by 



LORD HARDWICKE 303 

buying up the life interest of Mr. Ventris, then the actual chief 
clerk, and annexing the grant of the office to the chancellorship. 
Lord Hardwicke, however, very properly refused to deprive the 
future Chief Justice of this privilege for his own personal ad- 
vantage, and the difficulty was finally got over by a promise of 
that tempting ministerial bait, the reversion of a tellership of 
the Exchequer, which was to be given to his eldest son. 

Sir Robert Walpole himself, accompanied by the lord presi- 
dent of the council and several of the other principal officers of 
state, attended the new Chancellor at the ceremony of his taking 
the oaths and his seat. It is a remarkable circumstance, that on 
the same day (February 17th), after having sat for some time in 
the Court of Chancery, Lord Hardwicke adjourned to the King's 
Bench, and there took his place as Chief Justice, to give judg- 
ment in a case of importance, which had previously been argued 
before him : thus uniting the functions of an equity with those 
of a common-law judge, and enjoying the singular honour of 
presiding in the two highest courts of the kingdom within the 
space of a few hours. 

One of the first duties which in his new station he was called 
upon to fulfil, was by no means an agreeable oue ; though he 
derived from it the assurance, that his abilities and his integrity 
were held in as high estimation by the chief of the opposition 
party, as by the King and his ministers. About the time when 
he was called upon to take his seat in the Court of Chancery, 
the attention of the public was engrossed by an open rupture 
between his INIajesty and tlie Prince of Wales, the latter of whom 
had long been at variance with his father. It was occasioned 
principally by the concealment of the Princess's pregnancy, of 
which, although she had been twice supposed to be on the poiut 
of delivery, no notification whatever had been given to the King. 
This and other breaches of respect determined his Majesty and 
the ministers to send to the Prince, in the name of his royal 
father, a severe message of reprimand ; and it was decided that 
Lord Hardwicke should be one of the bearers of it. In order 
to get over any objections that might be started on his part, a 
little stratagem was planned by Sir Robert Walpole for taking 
him by surprise. On Sunday, the 20th of February, the new 
Chancellor received from the Duke of Newcastle the King's 



304 LORD HARDWICKE. 

commands to attend the next day at the privy council, for the 
purpose of receiving the great seal. liOrd Hardwicke accordingly 
made his appearance there at twelve o'clock, the hour when the 
council was summoned. While he was waiting in the room 
next the bed-chamber, in company with the Duke of Newcastle, 
the Duke of Argyle, and some other of the members. Sir Robert 
Walpole suddenly came out of the King's closet, holding a paper 
in his hand, which proved to be the royal message, and in a 
hurried manner declared it was the King's pleasure it should be 
delivered by the Lord Chancellor, the Lord President, the Lord 
Steward, and the Lord Chamberlain. The first of these did not 
fail to expostulate on the hardship of selecting him for the per- 
formance of so irksome a duty. Sir Robert affected to coincide 
with him, and said he had already represented the matter to the 
King, but that his Majesty, w^hose determination on the subject 
was not to be shaken, had peremptorily said, "My Chancellor 
shall go." Further resistance was of course out of the question, 
and Lord Hardwicke, however reluctantly, had no alternative 
but to yield. After this point had been finally adjusted, about 
two o'clock, the King came out of his closet, and without making 
the slightest allusion to what had passed, presented him with the 
great seal, accompanying the delivery of it with many gracious 
expressions of his esteem. No further difficulties being started 
with respect to the royal message, it was accordingly delivered 
by the officers whom Sir Robert Walpole had fixed upon. The 
Prince of Wales received the deputation with much affability, 
and was particularly attentive to Lord Hardwicke, to whom he 
made many flattering compliments on his recent promotion. On 
their departure, the Chancellor happened to be the last who left 
the room, and the Prince detained him for some moments, 
charging him in a whisper with conciliatory expressions of regret 
for the displeasure of the King, and his anxiety to do all in his 
power toward repairing the breach between himself and his 
Majesty. Lord Hardwicke, naturally averse from this mode of 
communication, requested that the other members of the deputa- 
tion might be called back, and that the answer might be given to 
all alike : upon which the Prince replied, that he did not mean 
what he had said to be considered as an answer to the King's 
message, but merely wished to entrust his lordship with his sen- 



1 



LORD HARDWICKE. ^ 305 

timents, that he might afterwards make such use of his informa- 
tion as he might think fit. This singular confidence sufficiently 
shows what an opinion was entertained by the Prince and his 
party of the Chancellor's prudence and integrity. In the col- 
lection of manuscripts relating to the Yorke family, made by Dr. 
Birch, whence this anecdote is taken, there is an account, pur- 
porting to be written by Lord Hardwicke himself, of his inter- 
course on other occasions with the Prince, by which it appears 
that he received many expressions of his Royal Highness's esteem 
and respect for his character and talents ; but as the document, 
however interesting, is much too long to come within the limits 
of this memoir, the reader who may be curious to peruse it is 
referred to the original in the British Museum. It is marked 
No. 4325, in Dr. Ayscough's Catalogue. 

In quitting a court of common law for a court of equity. Lord 
Hardwicke did not labour under the disadvantages which both 
before and since his time have attended some Chancellors simi- 
larly removed. Neither had his education been confined to one 
exclusive course of study, nor had his practice been limited 
exclusively to one court. In the office of an eminent solicitor, 
his attention was most probably divided between the business of 
the common law, and that of Chancery; and as his professional 
prospects during the greater part of his studentship were in all 
likelihood undecided, it is natural to suppose that he would be 
equally anxious to qualify himself for either department which 
circumstances might afterwards point out as most eligible. After 
his call to the bar, he could not fail to experience the advantages 
of this double store of knowledge. The circumstance of his 
patron. Lord Macclesfield, being promoted to the woolsack, had 
the effect of confining his practice, at first, in a great degree to 
the Court of Chancery; the duties of his official appointments 
afterwards obliged him to devote a considerable part of his atten- 
tion to the King's Bench. For either situation he was equally 
well qualified. He had not only directed his reading towards 
the attainment of the different portions of legal knowledge neces- 
sary for both, but his early acquaintance with the practical pro- 
ceedings of each gave him advantages which reading alone might 
perhaps have been unable to supply. These peculiar circum- 
stances in his education and his professional practice made it 



306 LORD HARDWICKE. 

comparatively a matter of indifference to him, so far as regarded 
the requisite knowledge, in which court he was called upon to 
preside. His removal from the King's Bench to the chancellor- 
ship was therefore not attended with that inconvenience, either 
to himself or to the public, which has frequently and justly been 
made the subject of complaint, when mere common lawyers have 
been placed upon the woolsack; and perhaps still more justly, 
when Chancery barristers have been called upon to fulfil duties 
so foreign to their professional studies and habits as those of a 
common-law judge. 

It was in the Court of Chancery that Lord Hardwicke passed 
the longest and most glorious portion of his professional career. 
It was his singular good fortune to fill the highest legal station in 
the kingdom during nearly twenty years ; a space of time longer 
than it has been the lot of any single individual to occupy it, 
with the exception of Lord Chancellor Egerton among those 
who have preceded him, and of Lord Eldon among his succes- 
sors. Very few, even of those who have held the same office 
during a much shorter period, have escaped in an equal degree 
the envy and evil report of their contemporaries. His integrity 
no one ever called in question ; his talents were beyond the 
reach of censure : and those who made it their business to dis- 
cover faults in his character, were obliged to dwell upon such 
minor blemishes as detracted but little from the eminent qualities, 
which even his enemies could not refuse to acknowledge. The 
wisdom of his decrees was the theme of universal eulogy. The 
only failing which the most captious could pretend to detect in 
his judgments was, that he sometimes betrayed an inclination 
rather to base them exclusively on the foundation of pure reason, 
than to frame them according to the strict tenor of the positive 
regulations by which that reason ought to be modified and con- 
trolled. The accusation is a general one, and one that it might 
at present be equally difficult to refute or to substantiate. Even 
admitting it to be well founded, it would probably with many 
still remain a question, how far such a charge should be made a 
subject of reproach, and how far of praise. For when it is con- 
sidered, that originally the peculiar province of the Court of 
Chancery was to administer redress for such grievances as did 
not come under the cognizance of the common law; that it was 



LORD HARDWICKE. 307 

intended also to obviate the hardship, and in some cases the in- 
justice, which cannot always be either avoided or remedied by a 
severe adherence to the letter of established rules ; it may fairly 
be asked, whether the too great multiplication of restrictions on 
the discretionary powers of the Chancellor be not calculated to 
defeat the object, for the accomplishment of which his jurisdic- 
tion was first created. That some and even many restraints 
must be laid on the mere discretion of any officer of justice, is 
what no speculative lawyer will venture to controvert, any more 
than a practical one will deny that many are actually imposed on 
an English Chancellor. The Chancery, as Bacon very aptly 
observed on taking his seat there, is ordained to supply the law, 
not to subvert the law. We have so far improved upon this 
maxim, that, at present, he who presides in that court may well 
profit by the admonition which the same great man gave to Ser- 
jeant Hulton, when he was appointed a judge of the Common 
Pleas, — that he should draw his learning out of his books, not 
out of his brain. Indeed, the system which, in the technical 
language of our jurisprudence, is called equity, is now little, if 
at all, less accurately circumscribed by known rules and prece- 
dents, than the very difierent system which, in contradistinction 
to it, we emphatically term law. But its limits were far from 
being so minutely traced, at the period when Lord Hardwicke 
was called to the woolsack. If the comparison be not too fanci- 
ful, we may liken the different state of the equity of that day 
from the equity of our own time, to the diflferent condition of 
certain suburbs of the metropolis at the same periods. Where 
the passenger now finds his path clearly marked out by long 
rows of houses, which prevent him from swerving to the right 
or to the left, except at known and definite intervals, he might 
then, in many places, pursue his way as he listed among fields 
and pastures, unrestrained except here and there by some iso- 
lated building. In the same manner, where an equity judge of 
the present day is hedged in by rules and precedents, so that it 
is not at his option to adopt the course he pleases, he might then 
occasionally find himself in a situation where his path was much 
less confined. Now it is an undisputed fact, that a very con- 
siderable proportion of the precedents which at present serve at 
once as guides and as restraints, both to direct and to control the 



308 LORD HARDWICKE. 

judgment of the Chancellor, were created by Lord Hardwicke 
himself. It has already been remarked, that there would be 
great difficulty in ascertaining to what precise extent he took 
upon himself to overstep the boundaries marked out by his pre- 
decessors ; but those who are the most inclined to consider the 
so doing a serious fault, and to believe him guilty of it, must at 
least admit that he has amply atoned for his error, by contribut- 
ing so much to prevent his successors from falling into a similar 
one. 

A point on which he is much more open to censure, is the in- 
difference with which he tolerated in his court grievances it cer- 
tainly was in his power to palliate, if not wholly to remedy. At 
least, it unquestionably was his duty to make some attempt 
towards the redress of them ; and that he neglected to do so is 
assuredly 'a stain upon his judicial character. Faults of omis- 
sion, it is true, are generally looked upon with much more in- 
dulgence than those of actual commission; but where a duty so 
imperious is wilfully and designedly neglected, where that neglect 
is certainly occasioned in part by unworthy motives, and where 
it is productive of incalculable mischief and injury to a very 
large portion of the community, too much severity of animad- 
version can hardly be lavished upon it. As early as the year 
1733, that is, before Lord Hardwicke was appointed Chancellof, 
a Commission had been appointed for inquiring inlo certain 
abuses of the Court of Chancery. The result of their researches 
was not, however, made public till 1740, when he had presided 
for some years in that court. During this period, he had taken 
a part in the proceedings of the inquiry ; and his signature is 
accordingly affixed to the report. As this production laid open 
to public view some of the numerous abuses, the effects of which 
had long been the theme of general discussion and complaint, 
and which, indeed, had given rise to the publication of several 
works on the subject, it is impossible that Lord Hardwicke could 
have been ignorant of the evils occasioned by them. That he 
was eminently qualified to perform the ordinary duties of his 
station, is a sufficient proof that he had all the necessary infor- 
mation which might enable him to detect and to remedy the 
causes of those evils. That some effort of this kind was ex- 
pected from him, he seems to have been fully aware ; and three 



LORD HARDWICKE. 309 

years after the publication of the report, he issued an order for 
the regulation of some trivial matters connected with the practice 
of the court, and particularly regarding the fees of solicitors. 
But had this been put forward as an attempt at reform, it would 
have been looked upon as nothing short of an absolute mockery ; 
and indeed the Chancellor acknowledged at the time, that he 
niefely issued the regulations as a temporary measure, until 
some more effectual provisions could be sanctioned by the legis- 
lature. Now those provisions were never made nor attempted 
to be made. For this the chief blame must rest with Lord 
Hardwicke, who, knowing and acknowledging the necessity of 
reform, having fully sufficient power and influence to effect it to 
any extent he might think fit, and having moreover tlius pledged 
himself that it should be effected, presided for twenty years in 
the Court, without using the slightest endeavour to fulfil his 
promise. It will not tend to lessen the odium deservedly at- 
tached to such a mode of conduct, that the only probable motive 
which can be assigned for it, is avarice ; in other words, that he 
abstained from suppressing abuses, because those abuses were 
profitable to him. 

But however deep a blot this may appear in the character of 
a Chancellor, it is necessary to dismiss all thought of it from our 
minds, when we undertake to examine the merits of his deci- 
sions. The manner in which he acquitted himself of the ordi- 
nary duties of his office must be estimated,~hot according to what 
the state of the Court of Chancery ought to be, or what he 
himself might have made it, but according to what it actually 
was. It is not to be wondered at, if disappointed suitors or 
envious enemies should have made it a charge against Lord 
Hardwicke, that he was not so expeditious in delivering his 
judgments, as the impatience of the former or the malignity of 
the latter could have desired. But when we find that impartial 
and disinterested, not to say competent, judges have dwelt with 
admiration on his mode of conducting the business of the court, 
and especially (considering the obstacles that stand in the way 
of expedition) on the dispatch with which it was disposed of, 
we may safely reject this imputation as frivolous and unfounded. 
It is the lot of those who occupy eminent stations, to be con- 
stantly exposed to calumny and misrepresentation ; and the 



310 LORD HARDWICKE. 

watchful eye which the English public ever keeps on tlie officers 
of the law, is very often led to see their failings through an ex- 
aggerated medium. *' Bread and water," says the amiable and 
learned Sir John Wilmot, " are nectar and ambrosia, when con- 
trasted with the supremacy of a court of justice ;" and all will 
be inclined to agree with him, who are either loo sensitively 
alive to the influence of vulgar clamour, or cannot find consola- 
tion for it in the consciousness of their own abilities. The fact 
is, that popular outcry on such a subject as this is not worthy of 
much regard. It may be considered a proof that there are faults 
in the system against which it is raised, but not that the fault 
lies with one particular person. When we find that the average 
number of bills filed yearly in the Court of Chancery, while 
Lord Hardwicke presided there, fell very little short of two 
thousand, we cannot in reason feel much surprised that there 
should have been an arrear of cases on the list, and that some 
delay should have taken place before each cause could find a 
hearing. In order to estimate the degree of ability with which 
any functions are performed, it is necessary first to know what 
those functions are, and what is the difficulty of executing them. 
Now, with regard to the Chancellor, this is what none but law- 
yers are fully acquainted with, and therefore none but lawyers 
can appreciate the judicial merits of a Chancellor. What may 
appear unaccountably tedious delay to those who can see no 
motives for any delay at all, may possibly be considered as ex- 
traordinary expedition by those who are aware of the utter im- 
possibility of more speedy dispatch. Nor should it be forgotten, 
that a hasty decision is likely to prove, in the end, a much longer 
method of disposing of a cause than a deliberate judgment. " I 
have seen," said Bacon, "an afi^ectation of dispatch turn utterly 
to delay at length ; for the manner of it is to take the tale out of 
the counsellor at the bar his mouth, and to give a cursory* order, 
nothing tending or conducing to the end of the business. It 
makes me remember what I heard one say of a judge that sat 
in Chancery, that ' he would make forty orders in a morning out 
of the way;' and it was out of the way indeed, for it was no- 
thing to the end of the business. And this is that which makes 
sixty, eighty, an hundred orders in a cause to and fro begetting 
one another, and like Penelope's web doing and undoing." This 



LORD HARDWICKE. 311 

applies as well to final decisions as to interlocutory orders in the 
progress of a suit. During the chancellorship of Lord Erskine, 
suitors were at first gratified by the expeditious manner in which 
their claims were discussed and adjusted ; but when the success- 
ful party found he had to encounter the delays and the expenses 
of an appeal after judgment had been given for him in Court, 
he no doubt abated somewhat of the admiration he had felt for 
the intuitive penetration and the rapid decision of the Chancellor. 
In the course of twenty years, during which Lord Hardwicke 
presided in the Court of Chancery, three only of his judgments 
were appealed from, and those were confirmed by the House of 
Peers. 

The ample stores of legal wisdom which he furnished to the 
world, while he presided in the Court of Chancery, are treasured 
in the reports of Atkyns and of Vesey senior. The first volume 
of the former was published the year after Lord Hardwicke had 
resigned the seals. The cases, instead of being classed accord- 
ing to the chronological order of decision, were placed under 
separate heads and titles, after the manner of a digest ; but this 
plan being generally disapproved of, as less convenient for occa- 
sional reference, was discontinued in the next volume, (published 
in 1767,) wherein the usual mode of arrangement was adopted. 
Mr. Vesey's work was not given to the public till 1771. It would 
be difficult to find in any age or nation, as the production of a 
single man, a more various or comprehensive body of legal wis- 
dom, than is contained in these volumes. Though upon the 
whole arranged with more care than the collection of Mr. Lee, 
they have not preserved the speeches of the Chancellor with 
such accuracy, as to convey a distinct impression of the style of 
his elocution. But however much we may regret, in a literary 
point of view, the condensed form in which the cases are pub- 
lished, if we look upon them as law reports, their conciseness 
certainly cannot be considered otherwise than a merit. The 
work of this nature in which the words of the Judge have been 
most carefully noted down, is that of Sir James Burrow. This 
reporter had peculiar advantages. He was not only furnished by 
Sir John Wilmot with the short abstracts of cases which that 
judge was in the habit of drawing up with great care from the 
notes he had taken in court, but it is said that he also regularly 



312 LORD HARDWICKE. 

submitted his own manuscript to Lord Mansfield for approval 
and correction, before it went to press. His reports contain, in 
consequence, a full and minute record of all that fell from the 
lips of one of the most eloquent men that ever presided in a 
court of justice ; and for entertainment, or in a certain sense, for 
instruction, they are undoubtedly to be preferred before most of 
the works that find a place in a lawyer's library. But the prac- 
tical lawyer who opens them in search of information on any par- 
ticular point may often find occasion to regret the copiousness of 
their detail, and to wish that Sir James Burrow had imitated the 
conciseness of Atkyns. 

In framing his judgments. Lord Hardwicke appears always to 
have been anxious to bring the case within the scope of some 
broad general principle. This, however, he never efljected by 
means of forced interpretations or fanciful analogies. He was 
always careful to support his opinion by the authority of legal 
precedents, in the selection and application of which he was par- 
ticularly happy. Again, his regard for principles never betrayed 
him into the dangerous practice of giving his own judgments in 
such loose and general terms, as might extend their authority 
too far. It was his invariable practice to express himself in the 
most guarded terms, and to mention distinctly the qualifications 
and restrictions with which he meant his opinion to be received ; 
so that his judgments were effectually prevented from acquiring, 
as precedents, a wider application than it was his original design 
to give them. For illustration, and, in the absence of other au- 
thorities, for a guide in his arguments, he frequently had recourse 
to the civil law, with which, like his illustrious contemporary 
Mansfield, though not perhaps in so great a degree, he had fami- 
liarized himself, and for which, in common with all who have 
ever made it their study, he entertained the highest respect. It 
might possibly be in part the result of his acquaintance with 
the writings of the ancient civilians, that his judicial arguments 
were peculiarly distinguished by the qualities for which they 
had been deservedly praised, namely, luminous method in the 
arrangement of the topics, and elegant perspicuity of language in 
the discussion of them. When he delivered his opinion on any 
case of importance, he was so far from wishing or attempting to 
pass over the objections which had been suggested by those 



LORD HARDWICKE. 313 

who argued on the opposite side, that he frequently repeated 
them in such a way as to give them greater force than had 
been claimed for them at the bar. The masterly manner in which 
he afterwards refuted them generally called forth the admiration, 
and extorted the assent, even of those who had originally pro- 
pounded them. By the constant attention he always paid to the 
speeches of the bar, he acquired, during the progress of the 
cause, a mass of information, of which he did not fail to find 
the advantage in drawing up his judgments. He did not affect 
to be above learning from any, even the youngest and most in- 
experienced, of the barristers who argued before him ; and though 
it is to be supposed he often had to listen to the redundancies 
and superfluities which too frequently disfigure the oratory of 
our courts, (perhaps the Court of Chancery more than any 
other,) his courtesy and politeness always prevented him from 
testif}nng the slightest impatience. In this he differed from Lord 
Mansfield, who, singularly affable and courteous as he was in 
his general behaviour to the bar, did not always think himself 
obliged to keep up the appearance of attending strictly to the 
speakers. During a long reply, for instance, he would generally 
be, or appear to be, occupied with a newspaper ; and at the close 
of the harangue, carelessly asking the orator whether he had 
finished, he would immediately proceed to charge the jury. It 
is true, his charges on such occasions often excited the wonder 
of his audience, so beautifully lucid was the arrangement of the 
arguments, so clear the statement of the facts, so plainly were 
the inferences pointed out. The whole court would be lost in 
amazement, on finding that tlie Judge, who had to all appear- 
ance been only inattentive to the arguments of counsel, did not 
omit a single one of any importance when he was summing up. 
But wliile they were surprised and delighted by the display of 
such extraordinary abilities, there never failed to be one or two 
persons in the court who felt at least as much dissatisfaction- as 
the rest of the audience did pleasure ; and those were the neg- 
lected orators. Lord Hardwicke never gave in to this failing ; 
for a failing it undoubtedly was, to whatever exhibitions of talent 
it may have given occasion. He was always careful, not only 
to listen with patience and attention to the bar, but, what is 
sometimes of still greater importance, to make it appear that he 

21 



314 LORD HARHWICKE. 

did so ; a practice which no judge, who has it at heart to be popu- 
lar among his own profession, can safely neglect. 

In this respect, also, the evenness and placidity of his tem- 
per gave him great advantages. On no occasion was he ever 
betrayed into ebullitions of temper, such as, both before his lime 
and since, have too often degraded the dignity of our courts of 
justice. The affability and the courtesy of his general demeanour 
towards the bar, and the solicitors of the court, to which he had 
been in no small degree indebted for his professional advance- 
ment, Avas in no wise lessened when he had reached the summit 
of legal honours.* 

In private life he has been accused, not perhaps without rea- 
son, of occasionally displaying an undue assumption of superi- 
ority, which showed that his dignity sat less easily upon him 
than if he had worn it from his birth. But whether he felt more 
anxious for popularity among the members of that profession to 
which he owed his eminence, or whether the tribute of respect 
due to his legal rank was more readily paid by them than by 
society, or whether that he felt less of embarrassment, and a 
more complete self-possession, in court than out of it, he cer- 
tainly never showed any signs of haughtiness there; and the 
placid urbanity of his manners towards those who attended in 
Westminster Hall, lent an additional grace to the elegance of his 
diction, the profundity of his learning, and the acuteness of his 
judgment. 

From what has been said of Lord Hardwicke's eloquence, it 
may be inferred that he was more calculated to shine as an 
orator on the bench than in Parliament. In the latter place, so 
long as his subject required nothing more than perspicuous 

* An anecdote is related of him, which furnishes an excellent in- 
stance of his good-natured attention to suitors, and his tact in adminis- 
tering an indirect rebuke to counsel. In a cause to which a Mr. Cromwell 
was a party, the advocate opposed to him thought fit to indulge in some 
very unwarrantable vituperation of that gentleman's ancestry. Lord 
Hardwicke was aware that the representative of the family happened 
to be in court at the time, and begging the orator's pardon for inter- 
rupting him, he expressed his fears that Mr. Cromwell might find him- 
self inconveniently situated outside the bar, inviting him, at the same 
time, to take a seat on the bench. It is needless to add, that when the 
:speech was renewed, it was in a very difierent tone. 



LORD HAEDWICKE. 315 

statements and forcible arguments, he commanded as much atten- 
tion and as much admiration as in a court of justice. The most 
eminent statesmen and orators of his time have indeed likened 
him, when speaking, to the personification of public wisdom 
delivering instruction. But in a public assembly wisdom itself 
is not all-sufficient ; indeed we naturally connect with wisdom 
the ideas of calmness and consideration, which it need scarcely 
be said are not always consistent with the warmth of debate. 
To form a distinguished parliamentary orator, many of the same 
qualities, no doubt, are necessary as those which are requisite 
for a judicial one; but others must be added. The one may be 
compared to a mariner, who sails through unruffled waters, and 
encounters none but gentle breezes ; the other holds his course 
over a troubled sea, filled with rocks and quicksands, and eddies, 
and whirlpools ; he has to guide his bark through all these 
perils, in spite of a heavy wind that is continually shifting its 
quarter, and blows alternately from every point of the compass. 
This situation calls not only for all the skill and the experience 
of a practised navigator, but for the energetic promptitude of 
thought and of action, the undaunted courage, and the mixture 
of boldness and of caution, which many a practised mariner 
wants. In like manner, for him who trusts himself to the 
stormy sea of public debate, the acuteness of judgment, the 
profoundness of thought, and the facility of elocution, for which 
Lord Hardwicke was distinguished, are not alone sufficient to 
ensure success ; especially if it be true, as Lord Chesterfield 
expressly says, and as there is no reason to doubt, that his ora- 
tory savoured somewhat of the pleader. Argument, however 
sound, expressed in language however elegant, is not always 
sure of producing an effect in such assemblies as our Houses of 
Parliament, unless it be occasionally accompanied, not only by 
wit and satire, but by vehemence of declamation, and even of 
gesticulation, greater perhaps than strict taste would warrant, in 
addressing a different auditory. If this be in some degree true 
of our Parliament, even at this day, it certainly was much more 
so in the time of Hardwicke, when oratory had more influence, 
and mere argument less, than at present. The man who had 
not the sharp and ready weapon of satire at his command, whose 
very temperament forbade him from soaring into the region of 



316 LORD IIARDWICKE. 

impassioned eloquence, could not expect to hold a prominent 
place in the golden age of English parliamentary oratory, when 
m both Houses speakers were held as second-rate, who at many 
otlier periods might have aspired to the supremacy then yielded 
to no less a man than Chatham. 

In respect of political knowledge and judgment, also. Lord 
Hardwicke was far from holding a foremost rank. He certainly 
appeared to much less advantage in the House of Lords or at 
the Council-table, than in the Court of Chancew?- ; and yet, by 
a species of perversity by no means uncommon, he rated or 
afiected to rate his qualifications as a politician much higher 
than his ability as a lawyer. " Men are apt to mistake," says 
Lord Chesterfield, "or at least to seem to mistake their own 
talents, in hopes, perhaps, of misleading others to allow them 
that which they are conscious they do not possess. Thus Lord 
Hardwicke valued himself more on being a great minister of 
state, which he certainly was not, than upon being a great magis- 
trate, which he certainly was. All his notions were clear, but 
none of them were great. Good order and domestic details 
were his proper department: the great and shining parts of 
government, though not above his parts to conceive, were above 
his timidity to undertake." This passage, and indeed the whole 
of the character of Lord Hardwicke by the same author, seems 
written in the spirit of truth and impartiality. It may indeed be 
said of him, as it has been said in another sense and with much 
less truth of Lord Mansfield, that his political career is not the 
portion of his life which his eulogists can dwell on with most 
complacency. It should be remembered, however, that a lawyer 
who enters the arena of politics in competition with those who 
make politics their study and their profession, labours under a 
disadvantage almost as considerable as a politician who, without 
further preparation than could be made in the leisure hours of 
his principal occupation, should quit one of the houses of par- 
liament to take his seat at the bar or on the bench of one of the 
courts of law. This consideration seldom has due weight given 
to it, though the slightest reflection is sufficient to show that it 
cannot reasonably be put out of sight, in attempting to estimate 
impartially the talents of one who combines the functions of the 
lawyer with those of the statesman. Nor is it only in respect 



LORD HARDWICKE. 317 

of his inferior opportunities for acquiring political knowledge, 
that some allowance may be claimed for the lawyer. His pro- 
fession not only engrosses the greater part of his time ; it gives 
him also habits of thought uncongenial to those of a statesman ; 
and it is to no purpose to argue that none but weak and plastic 
minds suffer themselves to be influenced by habit. Such is not 
the fact, and numberless instances might be quoted to prove that 
it is not. The human intellect, however firm or however elastic, 
cannot be constantly and for a great length of time bent towards 
one object, without contracting a bias which will unfit it in some 
degree for being turned in a contrary direction. A man whose 
daily and hourly occupation obliges him to keep his mind con- 
tinually occupied with the most minute details of facts, who is 
for the most part forbidden to generalize and to speculate, who 
must hold a strong curb over his imagination, and never suffer 
even his reason to make a step but with the support and subject 
to the check of precedent and authority, — such a man, however 
strong may be his intellect, and whatever efforts he may make 
to preserve it free from any particular bias, must sooner or later 
find himself unable to prevent it from feeling that most powerful 
influence to which our nature has subjected us, the influence of 
habit. 

It is not at present easy to form an estimate of Lord Hard- 
wicke's qualifications, otherwise than from the report of his 
contemporaries. The measures adopted by the ministry during 
his chancellorship are no doubt recorded in the annals of the 
reign, and are consequendy open to criticism ; but without some 
more private information, it is impossible to determine what 
share he had in the advising of them. The papers left by Lord 
Hardwicke, which are now in the possession of his representa- 
tive, comprise his confidential correspondence with the Duke of 
Newcastle and Mr. Pelham. According to Mr. Coxe, to whose 
inspection they were submitted when he was writing the memoirs 
of the Pelham administration, they are a mine of valuable infor- 
mation as to the secret history of the time ; but from the few- 
specimens preserved in that work, it would certainly be hazard- 
ous to attempt drawing any general conclusion, either as to his 
general ability, or the responsibility that attaches to him. Horace 
Walpole says of him, that he had no knowledge whatever of 



318 LORD IIARDWICKE. 

foreign affairs, but what was wliispered to him by the Duke of 
Newcastle ; from another quarter we learn, tliat the Duke of 
Newcastle never took a single step without the advice of his 
most trusty counsellor, Lord Hardwicke. It is probable that 
neither of these accounts is strictly correct. That the first has 
not the slightest foundation in truth, there exists ample evidence 
in the correspondence of Lord Hardwicke with the Duke of 
Newcastle, where the former occasionally exposes his own 
views on the subject of foreign policy, and the latter never seeks 
to disguise the importance both Re and his brother attached to 
the counsel as well as the support of the Chancellor. In one 
letter, written in 1739, after alluding to his great credit and 
influence as well in the cabinet as in the House of Lords, the 
Duke makes the following avowal to him : — " It is no disagree- 
able circumstance, in the high station in which your lordship is, 
that every man in the House of Lords now knows that yours is 
the sense of the King's administration, and that their interest 
goes with their inclinations when they follow your lordship." 
It is well known that the Duke was naturally timid and waver- 
ing; that he dreaded responsibility, and, like other men of the 
same character, was more inclined to recommend half-measures 
than to take a decided part. Lord Hardwicke was of a similar 
turn of mind ; and the congenial dispositions of the two minis- 
ters may be supposed to have produced a general coincidence 
in their opinions, which of course must have made it at all 
times difficult, and at present impossible, to ascertain with which 
of them those opinions first originated. The following extract 
from one of the Duke of Newcastle's letters will show pretty 
clearly on what footing they stood with regard to each other in 
respect of opinions ; and at the same time give proof, that how- 
ever unconscious his Grace might be of timidity and indecision 
in himself, he was quite aware that his friend was not exempt 
from those failings. " My brother," he writes, " has all the 
prudence, knowledge, experience, and good intention, that I can 
wish or hope in man ; but it will or may be difficult for us 
to stem alone that which with your great weight, authority, 
and character, would not be twice mentioned. Besides, my 
brother and I may differ in opinion, in which case I am sure 
yours would determine both. There has been for many years 



LORD HARDWICKE. 319 

a unity of thought and action between you and me ; and if I 
have ever regretted any thing, it has been (forgive me for saying 
it) too much caution in the execution, which I have sometimes 
observed has rather produced than avoided the mischief appre- 
hended." 

With regard to domestic policy, the principal measures that 
are supposed to belong entirely to the Lord Chancellor are the 
bill for the abolition of heritable jurisdictions in Scotland, 1747 ; 
the act for the naturalization of the Jews ; and the Marriage 
Act, both passed in 1753. The first of these was framed for 
the purpose of diminishing the feudal power of the chiefs and 
great landholders of Scotland, which had been found too dan- 
gerous in the recent rebellion. The Chancellor introduced it at 
first into the House of Lords ; but it was there objected, that as 
compensations were to be granted, it came within the rules of a 
money bill, and must consequently originate with the Commons. 
It was accordingly sent thither, and passed, though not without 
considerable opposition. That which it encountered in the House 
of Lords was comparatively trifling, and it was carried without 
a division. Lord Hardwicke's manuscript notes of the debate 
have been preserved, and have furnished the account of it given 
in the fourteenth volume of Hansard's Parliamentary History. 
The measure itself was a prudent one, and well justified by 
reasons of policy. It would be well for the fame of Lord Hard- 
wicke had he never gone further than this in his demonstrations 
of loyalty to the reigning family ; for it certainly redounds little 
to his credit, that when on another occasion it was proposed to 
inflict the penalties of high treason on all who should correspond 
with the Pretender or his sons, he endeavoured to procure the 
insertion of a clause to implicate the posterity of the oflenders, 
durnig the lives of the Pretender's sons, in the same crime, and 
the same^unishment. 

Of the two acts passed in 1753, that for the naturalization of 
the Jews excited so much clamour among all ranks and classes, 
that the ministry easily consented to repeal it in the following 
session. To have proposed an act calculated to promote re- 
ligious toleration, and to remove civil disabilities imposed on 
account of religious faith, does much more credit to Lord Hard- 
wicke, than the facility with which he yielded to the popular 



S20 LORD HARDWICKE. 

outcry against it. As to the act for the prevention of clandes- 
tine marriages, the existence of such abuses as are enumerated 
in it is suAlcient proof that some legislative enactment of the 
kind had long been wanting ; and whatever may be the intrinsic 
merits of the statute, it is certain that he who conceived and 
brought it forward, rendered a very signal service to the country. 
It may be instanced as an almost ludicrous example of the 
misrepresentation to which the motives of men in public life are 
liable, that Lord Hardwicke was reported to have brought the 
subject before parliament, chiefly, if not solely, with the view 
of taking an effectual precaution against improvident marriages 
among his own family. 

The Marriage Act was not passed without considerable oppo- 
sition in the Commons. Towards the close of one of the 
stormy debates to which it gave occasion. Fox used the opportu- 
nity to make a very unjustifiable attack upon the character of 
Lord Hardwicke. He was answered in a. spirited manner by 
one of the Chancellor's sons, Charles Yorke ; who in the course 
of his speech gave Fox to understand that it was dangerous to 
attack a personage of such authority; and that he might possibly 
be made to feel it. This hint produced from Fox something like 
what in parliamentary language is called an explanation ; that is, 
a partial disavowal, or at least a palliation, of what he had pre- 
viously said. The matter, however, did not end here. Lord 
Hardwicke himself took up the subject in the House of Lords, 
and commented with much warmth and asperity on the conduct 
of Fox, whom he designated as a dark, gloomy, and insidious 
genius, an engine of personality and faction. The greater part 
of his speech was in this strain. He said Fox had repented of 
what he had said, but that for his own part he despised his scur- 
rility as much as his adulation and retractation. These particu- 
lars would, perhaps, scarcely be worth preserving, but that they 
afford a singular instance of Lord Hardwicke's being betrayed 
into losing the command of his temper. In general, he never 
suffered opposition to ruffle him, and his perfect calmness some- 
times gave him an advantage in debate, which might more than 
compensate for the want of other qualities. On this occasion, 
however, he gave a full vent to his anger ; and what makes his 
conduct appear the more extraordinary is, that not only several 



LORD HARDWICKE. 321 

days had elapsed since the provocation, but that he read or 
affected to read his speech from a written paper, as if determined 
to show, that however strong his expressions might be, they 
were the result of deliberation. 

On the death of Mr. Pelham, and the subsequent appointment 
of his brother, the Duke of Newcastle, to be prime minister, (in 
the spring of 1754,) among other promotions which took place 
was that of the Lord Chancellor to a higher rank in the peerage. 
He was created Earl of Hardwicke and Viscount Royston. It 
may appear somewhat extraordinary that these dignities were 
not conferred at an earlier period, than when he had filled the 
eminent station of Chancellor upwards of seventeen years. It 
is certain that the King was willing to confer them much sooner, 
and it is believed that a proposal to that effect was more than 
once made to him by the ministry; but either Lord Hardwicke 
was till then averse from a higher elevation, or he thougln fit to 
yield unresistingly to that species of influence, against which 
many other wise men, including Socrates himself, have found it 
a vain and hopeless task to contend: — Lady Hardwicke's con- 
sent could not be obtained. 

Her ladyship was a woman of most exemplary prudence, and, 
conscious, no doubt, of her eminent capacity for the manage- 
ment of her family concerns, she suffered no one else to inter- 
fere with them ; not even her lord himself, who, as she used to 
remark, was indebted to her for his reputation as Chancellor, 
inasmuch as, by taking especial care to keep his mind entirely 
free from household cares, she enabled him to give its undivided 
energies to the duties of his official situation. Among the many 
praiseworthy qualities she displayed in the discharge of the 
functions she took upon herself, there was none more conspicu- 
ous than that of severe economy, a quality which indeed she 
carried to such a pitch, that most persons chose the word parsi- 
mony to convey an idea of it. Now, if she practised this vir- 
tue with regard to the most trivial of her household concerns, it 
was not to be supposed she would neglect to exert it in an affair 
which mothers are wont to consider a very important one, 
namely, the marriage of her daughters. So long, she used to 
say, as they were simply the IMisses Yorke, no suitors who 



322 LORD HARDWICKE. 

might solicit the honour of their alliance would think of insist- 
ing upon a larger fortune than ten thousand pounds ; but if they 
became Lady Elizabeth and Lady Margaret Yorke, no less a 
sum than twenty thousand would probably be expected. Ac- 
cordingly, their father, who was of a character to appreciate such 
reasoning as this, was forbidden to aspire to the honours of an 
earldom until such time as the young ladies should become 
wives. The eldest being at length married to the celebrated 
navigator. Lord Anson, and the youngest to a son of Sir Gilbert 
Heathcote, all impediments to his promotion were removed. 

This new accession of rank, however, could add nothing to 
the extent of his weight and influence in the House of Lords, 
which is said to have exceeded that of any other nobleman in the 
kingdom. His high personal character, his eminent station, and 
his intimate relations with the prime minister, were of them- 
selves sufficient to command for him no ordinary degree of 
respect and consideration. It is to be wished he had never 
descended to employ for the same purpose other means less 
worthy of him ; but it is too well known that, with little regard 
to justice or fair dealing, he used all the arts of intrigue to pre- 
judice those who might divide, and consequently lessen, his 
authority. Thus it was his favourite design (for obvious 
resons) to remain the only law lord, so that an appeal from the 
Court of Chancery to the Peers might be simply an appeal from 
Lord Hardwicke in Lincoln's Lin Hall to Lord Hardwickein 
the House of Lords. To effect that object, no exertion was 
spared to exclude from the peerage, either altogether or as long 
as might be possible, such men as Parker, Lee, Ryder, and 
Willes. Against the latter, indeed, who had entered upon his 
professional career about the same time with himself, he is said 
to have entertained a rooted and implacable jealousy, which, if 
the story related of him be true, he took an early opportunity of 
gratifying at the expense of every principle of honour, by re- 
lating to Lord Macclesfield the substance of a private conversa- 
tion in which Willes had spoken of him with disrespect. It is 
but fair to remark, however, that such a transaction as this 
is represented must necessarily have been of so private a nature, 
that it is easy to conceive the possibility of false rumours 



I 



LORD HARDWICKE. S2S 

being circulated with regard to it ; and that so serious a charge 
should not be admitted without the strictest evidence of its 
truth. 

Some obloquy has been cast upon Lord Hardwicke, on the 
ground that he disposed of the church patronage belonging to his 
office with a view rather to increase his own political influence, 
than to advance obscure merit, or to further the interests of 
religion. This accusation is undoubtedly just ; but whether the 
fault be a very venial or a highly criminal one, is a question 
likely to be decided by different persons in very different ways ; 
no one, at all events, will deny that it is a very common one. 
That he did not bestow a large portion of the emoluments that 
were in his gift as the rewards of literary merit, if it be a fault 
at all, is one not likely to escape being exaggerated. There is 
no class of persons more jealous of what they conceive to be 
a slight upon their calling, than men of letters ; and as they are 
commonly the directors of public opinion, an unfavourable im- 
pression is often widely circulated against men, whose chief 
crime is that of having offended their fraternity by some real or 
fancied neglect." Lord Hardwicke has not altogether escaped the 
lot of those whose reputation has the misfortune to fall under 
this kind of censure. It has been imputed to him as a crime, 
that he took away from the poet Thomson the place of secretary 
of briefs, which had been given to him by Lord Talbot. The 
fact is, that he did not absolutely take it away. It became 
vacant on the appointment of a new Chancellor, and Thomson 
was either too proud or too negligent to solicit a renewal of the 
office for himself, although a considerable time was suffered to 
elapse before it was disposed of, probably with the design of 
affording him every opportunity of making known his wishes on 
the subject. Lord Hardwicke's treatment of Dr. Birch seems 
also to have been somewhat misrepresented. That velry worthy 
and laborious man of letters had been tutor to his son, Charles 
Yorke, who took upon himself to recommend him for prefer- 
ment. " From my own acquaintance with him," he writes 
(1741), "I can only confirm the general character he bears of 
being a clergyman of great worth, industry, and learning, sub- 
sisting at the mercy of booksellers and printers, without any pre- 
ferment but a small living in the country, which will scarce keep 



324 LORD HARDWICKE. 

a curate. He is a person of excellent heart as well as liead, 
and by his diligence and general knowledge in most parts of 
learning, may be made extremely useful to the public." The 
immediate reply to this letter was an offer of a living in Wales 
of the value of thirty pounds a year, which Dr. Birch declined 
accepting. The amount certainly was inconsiderable, but it can 
hardly be supposed that Lord Hardwicke meant it for anything 
more than a temporary provision, till some other preferment 
might become vacant, especially as he did afterwards find another 
opportunity of being serviceable to him. 

According to Horace Walpole, " the best thing that can be re- 
membered of the Chancellor, is his fidelity to his patron; for let 
the Duke of Newcastle betray whom he would, the Chancellor 
always stuck to him in his perfidy, and was only not false to the 
falsest of mankind." Sufficient notice has already been given of 
this atrthor's exaggerations and mis-statements, to prevent his 
testimony from being received as evidence of anything further 
than the simple fact, that the political alliance between the Duke 
of Newcastle and Lord Hardwicke was invariably maintained 
with perfect fidelity. The resignation of the premiership of the 
one consequently ensured, as a matter of course, the resignation 
of the chancellorship by the other. This event took place in the 
autumn of 1756; and their party, which till that time had main- 
tained such a degree of power as seldom falls to the lot of a 
ministry, was suddenly thrown into the ranks of opposition. The 
failure of the ill-contrived effort made by the King in 1746, to 
emancipate himself from their control, had only produced the 
effect of rendering that control more absolute ; and thencefor- 
ward he had made scarcely any effort to contend against it. 
Their own imprudence, however, and the incapacity of some 
of their members, particularly of the Chancellor's son-in-law, 
Lord Anson, whose former celebrity was very ill sustained by 
his administration of the affairs of the Admiralty, at length 
brought about what the sovereign had no power to effect. The 
defeat of Byng, and the surrender of Fort Philip, were events 
that would have tried the stability of any ministry, even had its 
opponents been less formidable than were those of the Newcas- 
tle party. But towards the close of the year preceding (Nov. 
20th, 1755), Pitt, Legge, and George Grenville had received let- 



LORD HARDWICKE. 325 

ters of dismission from their respective offices, and James Gren- 
ville had resigned the Board of Trade, so that a powerful and 
desperate opposition was to be expected, which, with such a topic 
as the disgrace of the English navy to declaim upon, might 
raise up such a storm of popular indignation as the ministry 
would in all probability be unable to weather. Under these 
circumstances, Parliament was prorogued early, to prevent an 
immediate demand for an inquiry, which could not with any 
decency have been refused. During the recess, overtures were 
made to effect a coalition with Mr. Pitt, which however proved 
ineffectual, as he absolutely refused all terms that did not include 
the removal of the Duke of Newcastle. Unfortunately for his 
Grace, the Chief Justice of the King's Bench, Sir Dudley Rider, 
died in the course of the spring (25th May, 1756), and the vacant 
office was looked for by the Attorney-General, Murray, who was 
the Duke's ablest and most confidential ally in the House of 
Commons. It was in vain that the most brilliant, the most ex- 
travagant offers were made to prevail upon Murray to retain his 
seat only for one day, at the opening of Parliament. He reso- 
lutely insisted on being promoted to the chief justiceship, with a 
peerage; and at length, on his threatening, in case of a refusal, 
to desert the cause altogether, his demands were complied with. 
On the same day when he first took his seat in the King's 
Bench (Nov. 11th, 1756), the Duke of Newcastle resigned. A 
(ew days afterwards (19th November), the Lord Chancellor gave 
up the great seal, and it was put into commission in the hands of 
Willes, Chief Justice of the Common Pleas, Wilmot, who the 
year before had succeeded Sir Martin Wright as one of the puisne 
judges of the King's Bench, and Baron Smythe. 

Such was the close of Lord Hardwick^'s career as a Chancel- 
lor and a minister. Great efforts were made by the new minis- 
try to induce him to keep his place, but without effect; and in 
the ensuing summer, when the coalition took place^ between Pitt 
and Fox, he was equally resolute in his refusal to resume the 
seals, which, having been also offered to Lord Mansfield, to the 
Master of the Rolls, and to Willes, at length fell to the lot of Sir 
Robert Henley, with the title of Lord Keeper. Besides his dis- 
inclination to hold office with the new ministry, it is to be sup- 
posed he was not insensible that his advanced age required more 



S26 LORD IIAKDWICKE 

repose than was compatible with the arduous duties of his 
former station. He was now fast approacliing his seventieth 
year, and might well remain satisfied willi the dignity and for- 
tune he had acquired in the course of a long and prosperous 
career. Besides, in giving up his place, he by no means re- 
nounced at the same lime his political influence. If he had no 
longer a voice in the cabinet, he still retained in the House of 
Lords all the weight that could attach itself to one of the chiefs 
of a party still numerous and powerful. 

The King always continued to respect and esteem him. 
Having inadvertently omitted to recognize him on the first occa- 
sion of his appearing at court without the insignia of office, his 
Majesty no sooner discovered who he was, than he addressed 
him in the most flattering terms, and complimented him on the 
length and the value of his services. After the resignation of his 
office, his time was divided, as it had been before, though with 
less leisure for the country, between his estate of Wimpole, in 
Cambridgeshire (which had been the seat of the celebrated Lord 
Oxford before it came into his possession), and his town resi- 
dence, which was Powis House, in Grosvenor-square. With 
his neighbours at the former place he did not enjoy much popu- 
larity. He afl^ected to despise the manners and the acquirements 
of mere country gentlemen, and generally treated them with a 
supercilious reserve, pecuharly offensive to men, some of whom 
probably looked npon him as nothing more than a titled upstart. 
Nor was their treatment in other respects likely to please them 
better. Not only were their horses and servants invariably* sent 
to search for such accommodation as was to be procured at the 
dirty and miserable public house in the village of Wimpole, but 
the thrifty housekeeping of Lady Hardwicke by no means com- 
pensated the masters for the inconvenience to which they were 
put in the persons of their dependents. One monument of her 
ladyship's economizing disposition is still preserved at Wimpole. 
According to ancient custom, the splendidly embroidered purse, 
in which the Chancellor is wont to keep the great seal, is annu- 
ally replaced by a new one ; and in virtue of another custom of 
equally long standing, the discarded purse becomes the perqui- 
site of one of the officers of the court. This latter custom, how- 
ever, found no favour in the eyes of Lady Hardwicke, who 



LORD HARDWICKE. S27 

could by no means be convinced of the propriety of giving away, 
as a mere gratuity, what she could turn to some account herself. 
She accordingly took upon herself to abolish the practice, and 
the several embroiderings, in the whole twenty in number, were 
appropriated to ornament the hangings of a state-room in the 
house at Wimpole, where, as has been already stated, they may 
still be seen. 

Notwithstanding this peculiarity of Lady Hardwicke's cha- 
racter, she appears upon the whole to have fulfilled in an exem- 
plary manner the duties of a wife and a mother. With her 
husband she always lived on terms of the most perfect harmony ; 
and indeed it is probable that her excessive love of economy, 
which others might have considered her greatest failing, was 
looked upon by Lord Hardwicke as one of her brightest virtues. 
Avarice was certainly his predominant foible. That a man, who 
in his youth had been forced to accommodate his expenses to the 
limits of a narrow stipend, should never afterwards be able 
wholly to divest himself of habits acquired in the school of ad- 
versity, is by no means surprising ; and if his love of money 
had displayed itself merely in a disinclination to part with it 
when acquired, the fault might have been easily excused. But 
unhappily his cupidity led him to regard the increase of his for- 
tune as a primary object of ambition ; and though to accomplish 
it he never descended to employ means inconsistent with the 
strictest integrity, there cannot be a doubt that he sacrificed to it 
a species of fame which it was in his power to earn, and which 
it was incumbent on him to deserve. Had he not been deterred 
by avarice from effecting the reform of the Court of Chancery, 
he might have left behind him a smaller inheritance to his chil- 
dren, but he would have transmitted to them the glory of being 
descended from a disinterested benefactor of his country. Lord 
Waldegrave has said of him, that " he might have been thought 
a great man, had he been less avaricious, less proud, less unlike 
a gentleman, and not so great a politician." Sufficient has 
already been said to account for the first and the last of these 
charges. The two others may be looked upon as one. The 
pride of wealth and of station, even the pride of intellectual en- 
dowments, which is perhaps less offensive than either, can 



328 LOUD HARDWICKE. 

scarcely be made very manifest, without sul)jecting him who 
exhibits them to the imputation of being unlike a gentleman. 

Although Lord Hardwicke devoted a part of the leisure which 
his numerous duties left him to the cultivation of general litera- 
ture, it is not to be supposed that he could have much time to 
spare for composition. Accordingly, there remain (ew speci- 
mens of his style in writing, though, were we to judge of it only 
from his mode of speaking, we might safely pronounce it to 
have been easy and elegant. Some memoranda and familiar 
letters have been preserved by Dr. Birch, among which is a 
Latin one addressed to Dr. Clerk (Samueli Clerico), dated Sept. 
15th, 1724 ; and some political papers are still in the possession 
of his family. It is supposed also that he had some share in the 
composition of the work entitled " A Discourse of the Judicial 
Authority of the Master of the Rolls," usually attributed to his 
wife's uncle, Sir Joseph Jekyll, who filled that post ; but the 
supposition has never been authenticated. The only tract of 
any importance that can be confidently attributed to him, Is a 
letter to the Scottish judge. Lord Kaimes, which has been in- 
serted in the first volume of the memoirs of the latter, written 
by Lord Woodhouselee. Previously to the publication of his 
" Principles of Equity," in 1760, Lord Kaimes had communi- 
cated the introduction of the work to Lord Hardwicke, and the 
letter in question is a dissertation on some of the topics proposed 
for discussion. Lord Hardwicke does not profess to go at length 
into the arguments that may be adduced in support of his opi- 
nions. "The field," he says, employing a sporting metaphor, 
" is wide, and to range the whole is beyond my strength ; but I 
will beat a piece of ground here and there, to try if I can start 
any thing that may be worth your Lordship's pursuing." After 
some preliminary comments on the separation of common law 
from equity, he proceeds: "Whether the jurisdiction of com- 
mon law and equity ought to be committed to the same or to dif- 
ferent courts, is a ql^estion of another nature, and is very pro- 
perly said by you to be no less intricate than important. It is 
a question of policy and legislation, depending upon general rea- 
sons of civil prudence and government. You have treated it 
with great modesty ; and for ray own part, I am fearful of being 



LORD HARDWICKE. 329 

influenced by some prejudice or bias contracted from long habit 
and the usages of my own country." Notwithstanding this can- 
did avowal, however, he examines the question with great im- 
partiality, deciding at length in favour of the separation of the 
courts. He afterwards passes to the consideration of the restric- 
tions that ought to be placed on the discretionary power of an 
equity judge. He acknowledges the necessity of some restraints ; 
but represents at the same time the disadvantage of increasing 
them in such a degree, as to confine that power within as narrow 
limits as in a court of common law. The reasoning, though not 
fully developed, is quite worthy of Lord Hardwicke ; the whole 
letter is elegantly written, and it affords at tlie same time a spe- 
cimen of his peculiar manner of treating legal subjects, and evi- 
dence of his freedom from prejudice, in consenting to enter into 
a deliberate discussion upon doubts, the very mention of which 
some Chancellors would have held to be nothing short of an 
insult. 

All the powers of his vigorous and commanding intellect were 
preserved unimpaired to the latest period of his life, so that he 
retained the ability as well as the inclination to enjoy the plea- 
sures of literary occupation. The hand of time had also been 
laid so gently on his frame, that he knew little or nothing of the 
usual infirmities of age. By a constant adherence to the strictest 
temperance, he had repaired the defects of a constitution origin- 
ally by no means robust; and his health was uniformly good, 
until near the close of his seventy-third year, when he began to 
suffer from the attacks of the disease which not long afterwards 
put a period to his existence. His death took place at his house 
in Grosvenor-square, on the 6th of March, 1764. His remains 
were interred at Wimpole. 

The evening of Lord Hardwicke's life was as serene and un- 
clouded as the former part of it had been brilliant. It would be 
difficult to point out an instance of a longer or more uniform 
career of prosperity than that which he enjoyed. Entering the 
world without the advantages of birth or fortune, unfriended and 
unknown, he had overleaped with unexampled rapidity and ease 
the obstacles which, in the profession he had chosen, usually 
impede at the very outset the exertions even of men of wealth, 
rank, and powerful connexions. No more singular instance can 

22 



330 LORD HARDWICKE. 

be quoted of his good fortune, than that the party in which he 
enrolled himself should remain in power for a length of time 
almost unparalleled in the history of English ministries. With 
equal or even superior abilities, had he from the first attached 
himself to the Opposition, instead of to Sir Robert Walpole and 
his allies the Pelhams, it is clear he never would have enjoyed 
an opportunity of signalizing his knowledge and his talents in 
any official situation. That abilities, however transcendant, 
would never have obtained him such easy promotion as he gained 
through the influence of favouritism and patronage, is a fact that 
will surely be disputed by no one who is acquainted with the 
usual course of legal preferment; but, at the same time, it is 
equally certain that he never would have been able to improve 
his first ^advantage as he did improve it, without the aid of talents 
and acquirements of no ordinary kind. Though he owed much, 
therefore, to his good fortune, that circumstance detracts nothing 
from his real merit. 

Besides the dignified offices which were permanently confer- 
red on him, he was, at four several times, appointed one of the 
Lords Justices for the administration of the government during 
the King's excursions to Hanover. He also on three diflferent 
occasions received the commission of Lord High Steward of 
England. In 1749, on the Duke of Newcastle's resigning the 
ofl5ce of High Steward of the University of Cambridge, to accept 
that of Chancellor of the same body. Lord Hardwicke was 
elected to the place his friend and patron had vacated ; and the 
same dignity has since been successively conferred on his son 
and his grandson. Of his five sons, the eldest, Philip, who suc- 
ceeded to the title, and addicted himself with some success to 
literary pursuits, married the Marchioness Grey, who was grand- . 
daughter to the Duke of Kent, and a daughter of the Earl of 
Breadalbane. The third son, Joseph, after having been a con- 
siderable time ambassador to the States of Holland, was created 
Lord Dover in 1788 ; the fourth, John, did not distinguish him- 
self in any public capacity, but held the sinecure offices of Clerk 
of the Crown and Registrar of Bankrupts ; the fifth, James, was 
Bishop of Ely. The marriage of his two daughters has already 
been mentioned. It only remains to be added, that his second 
son, Charles Yorke, followed the profession in which his father 



LORD HARDWICKE. 331 

had so eminently distinguished hinoself, and followed it with 
such success, that he also became Chancellor ; though unfor- 
tunately a premature death prevented him from acquiring in that 
situation the reputation which his learning and his talents must 
otherwise have ensured him. His acceptance of the great seal, 
in January, 1770, gave such displeasure to his brother, to Lord 
Rockingham, and others of the party with which he was connected, 
that, stung with the coldness and the reproaches he had encoun- 
tered in an interview with them, he no sooner arrived at his 
house in Ormond Street, than he drank freely of some brandy 
which happened to be on the sideboard. The ardent spirits, 
combined with the strong irritation and the nervous excitement 
of his mind, brought on a violent paroxysm of sickness, which 
occasioned the rupture of a blood-vessel, and he lived but a very 
short time afterwards. The newspapers of the time hinted that 
he had put a period to his own existence, a rumor to which the 
mode of his death, and the apparent symptoms of violence indi- 
cated by the copious effusion of blood, no doubt at first gave 
rise. His relatives, however, took the best means to contradict 
this report, by causing his body to be exposed to the view, not 
only of family friends and acquaintances, but even of domestics, 
so that no doubt could be entertained as to the real cause that 
terminated his life. 

The last century produced conspicuous examples in public 
life, of the descent of talent as well as honours from father to 
son. Thus the illustrious Lord Chatham gave birth to William 
Pitt; with different degrees of merit, Lord Holland was the 
father of Charles Fox ; and Sir Robert Walpole, of Horace 
Lord Orford. Such instances appear to have been generally less 
rare in the profession of the law than in any other. When 
Bacon presided in the Court of Chancery, he had it to say that 
" there were three of the king's servants in great places : Mr. 
Attorney, son of a judge, Mr. Solicitor, likewise son of a judge, 
and himself a Chancellor's son." Heneage Finch, the son of 
Lord Chancellor Nottingham, elevated himself by his legal ac- 
quirements to the rank of Earl of Aylesford ; and nearer our 
own time, the son of Chief Justice Pratt has presided, first in 
the Common Pleas, and afterwards in the Court of Chancery, 
where his name as Lord Camden will long be held in veneration. 



S32 LORD HARDWICKE. 

To this catalogue of lawyers by deseent, which may no doubt 
be greatly enlarged, must be added the name of Charles Yorke. 
His career, though short, was eminently successful ; and the 
talents of which he had given proof afforded such promise of 
future celebrity, that he was universally looked up to as likely to 
become one of the most brilliant ornaments of that profession, 
to which his father had been indebted for all his wealth, his dig- 
nities, and his fame. 



\ 



SIR WILLIAM BLACKSTONE 



Among those who have risen to eminence by the profession 
of the law, none have obtained a more extended and durable 
reputation than Sir William Blackstone. The eloquence of the 
advocate only charms his contemporaries, and he is little re- 
membered when no more heard ; the wisdom of judges of the 
past time lies. hid in voluminous reports, and is known only to 
the initiated ; but the fame of the Commentaries is universal : 
they are at the present day as highly esteemed as when first 
published — they are studied by every one who wishes to become 
a lawyer — they are read by every one who considers it interest- 
ing to be acquainted with the political institutions or civil regula- 
tions of his country. The labours of Blackstone make smooth 
and pleasant the entrance of the student into the dry and intri- 
cate system of technical law, 

" and charm 
' His painful steps o'er the burnt soil." 

Of him, then, to whom every lawyer is under so great obliga- 
tions, it cannot be uninteresting to know the history. 

William Blackstone was born on the 10th of July, 1723, in 
Cheapside. He was a posthumous son ; his father, Mr. Charles 
Blackstone, a silkman by trade, having died some months before 
his birth. This his biographer and brother-in-law, Mr. Clithe- 
row, deems a providential circumstance, although apparently a 
misfortune. "For," says he, "had his father lived, it is most 
likely that the third son of a London tradesman, not of great 
affluence, would have been bred up in the same line of life, and 
those parts, which have so much signalized the possessor of 
them, would have been lost in a warehouse, or behind a counter." 
His mother belonged to a family of some consideration ; she was 



334 SIR WILLIAM BLACKSTONE. 

the daughter of Lovelace Bigg, Esq., of Chilton Folliot, in Wilt- 
shire. On her being left a widow, her relations took charge of 
the education of her children. The two eldest lads, Charles and 
Henry, were taken by their uncle Dr. Bigg, Warden of Win- 
chester School ; they afterwards both became Fellows of New 
College, Oxford, and obtained livings. Another uncle, Mr. 
Thomas Bigg, a surgeon in Newgate-street, provided for the 
subject of the present memoir. When seven years old, he was 
sent to the Charter-House, and in 1735 was admitted on the 
foundation, one of his mother's cousins having procured the 
nomination of Sir Robert Walpole. 

Here his proficiency was so great, that he soon became the 
favourite of the masters, and at the age of sixteen was at the 
head of the school. About this time he first displayed his lite- 
rary abilities by some verses on Milton, for which he was re- 
warded with Mr. Benson's gold medal. Although but young, 
he was thought sufiSciently forward to be removed to the univer- 
sity ; and accordingly, on the 30th November, 1738, ho was 
entered a commoner of Pembroke College, Oxford, — " a soci- 
ety," says Johnson, himself a member, " which for half a cen- 
tury has been celebrated for poetry and elegant literature." He 
was here contemporary with Shenstone, and Moore, afterwards 
Archbishop of Canterbury. Master Blackstone, however, did 
not proceed to the university immediately, but was allowed to 
remain at school until after the 12th of December, theanniver- 
sary commemoration of the foundation of the Charter-House, in 
order that he might speak the customary oration in honour of 
Richard Sutton, which he had been at the pains to prepare. 

Such was his merit, or such his interest (for he who was 
nominated by Walpole must have had some interest), that he 
obtained two exhibitions, to one of which he was elected by the 
governors of Charter-House, to the other by the fellows of Pem- 
broke College. 

He seems from the first to have made up his mind to follow 
the profession of the law, being doubtless prompted by that 
desire of distinction which his success at school had served to 
stimulate, for we find that he entered himself a member of the 
Middle Temple on the 20th of November, 1741 (being then 
eighteen); nor did he lose any time in qualifying himself for 



SIR WILLIAM BLACKSTONE. 335 

practice, but was called to the bar so soon as the probationary- 
period of five years had expired, viz. on the 28th of November, 
1746. 

Previously to this, he had removed from Pembroke to All 
Souls ; and in June, 1744, had become a fellow of the latter 
college. All Souls was no less celebrated for lawyers than 
Pembroke was for literati ; he himself mentions Lord Nor- 
thington and Chief Justice Willes as fellows of this society, and 
(space permitting) it might be pleasing to speculate on the influ- 
ence which this association with literature and law had upon 
Blackstone : 

"When first the college rolls receive his name, 
The young enthusiast quits his ease for fame ; 
Through all his veins the fever of renown 
Spreads from the strong contagion of the gown." 

In June, 1745, he graduated Bachelor of Civil Law. Upon 
obtaining a fellowship, and a consequent improvement of his 
revenue, he took chambers in the Temple, and divided his time 
between London and Oxford. 

At Oxford he had diligently progressed in the study of the 
classics, mathematics, &c. ; and, before he was twenty, had 
compiled a Treatise on the Elements of Architecture, illustrated 
by plans and drawings from his own pen, which, however, he 
did not publish. An eminent architect of the present day, to 
whom a few years since the work was referred for an opinion 
upon its merits, after criticising minutely that portion of it which 
related to the more ornamental part of the art, expressed his 
astonishment that any person not intended for the profession 
should have entered so elaborately, and reasoned so jusdy, upon 
what is generally supposed the least fascinating division of the 
study, viz. the different modes of construction of buildings, the 
various preparatory mechanical contrivances, the soil best suited 
for foundations, and other of the laborious minutiae of that sci- 
entific art. He devotetl, too, no inconsiderable portion of his 
time to the fascinations of polite literature, and had become 
accomplished in the art of poetry. But, upon betaking himself 
to read the law, he deemed it necessary to abandon tins pleasing 
employment. To do this required no little resolution, and he 



336 SIR WILLIAM BLACKSTONE. 

has ouibodied his regretful feelings in some elegant lines, which 
were afterwards printed in Dodsley's Miscellanies. These 
verses display a cultivated taste, and an intimate acquaintance 
with our most admired poets, with whose writings we may trace 
several coincidences. To his early predilection for poetry, we 
may reasonably attribute the formation of that exquisite style 
and method with which he afterwards embellished and illustrated 
the law. For nothing so well can teach us that propriety of 
expression, that felicity of illustration, and that symmetry of 
method, by which the most abstruse subject may be rendered 
clear and delightful, as the study of the works of those who 
may be styled the masters of language. He who would convey 
information must learn to please, otherwise he may pour forth 
stores of knowledge without much improving his hearers ; and 
the art of poetry is nothing more than the art of pleasing by a 
combination of words and images. Almost every lawyer who 
has risen to any enviable eminenc?, if not, like Blackstone, 
a poet himself, has nevertheless so far indulged a partiality for 
the belles lettres, as to have been the friend of poets and the 
associate of wits. Mansfield, Cowper, Harcourt, Talbot, and 
Stowell, are names which immediately occur to us. The 
" viginti annorum lucubrationes," which, according to computa- 
tion, are required to form a perfect lawyer, may without danger 
be interspersed with lighter and more miscellaneous studies, in 
the same manner as we may dine on a variety of dishes without 
injury, nay, even with advantage to our health. The .student 
requires not to be encouraged in relaxing pursuits ; it may how- 
ever console him to know, that they are not absolutely incon- 
sistent with his duty. 

Notwithstanding this relinquishment of the delightful employ- 
ment of his youth, we find that Blackstone had one relapse. 
This was on the occasion of the death of Frederick, Prince of 
Wales, in 1721, when, at the instance of his brother-in-law, he 
composed an elegy, which appeared in the Oxford Collection. 
He cared not, however, to be again caught toying with the muse, 
and therefore exacted from his relative a promise of secrecy, 
which that pious person presumed not to violate until after Sir 
William's death. 

Whether his expectations of success at the bar were humble 



SIR WILLIAM BLACKSTONE. 337 

or high, it may be conjectured, without much hazard, that they 
were disappointed. In fact, from 1746 to 1760, he only reports 
himself to have been engaged in two cases, and those so unim- 
portant, that they are not mentioned in any other book. But 
we are told that, at this period, he became acquainted with 
several of the most eminent men of the legal profession, who 
saw, through the then intervening cloud, that genius which 
afterwards burst forth with so much splendour. From the time 
of his call to the bar until Michaelmas Term 1750, he appears 
to have regularly attended the Court of King's Bench, and taken 
notes of cases. In these, however, we may perceive a gradual 
relaxation of diligence, symptomatic of hope deferred ; and lat- 
terly the only cases are those concerning the universities, in 
whose affairs Blackstone always took an especial interest. 

In his *' Farewell to his Muse," he thus salutes his profes- 
sion : — 

"Then welcome business, welcome strife, 
Welcome the cares and thorns of life, 
The visage wan, the pore-blind sight, 
The toil by da)', the lamp by night, 
The tedious forms, the solemn prate, 
The pert dispute, the dull debate, 
The drowsy bench, the babbling hall, 
For thee, fair justice, welcome all." 

The contemplation of justice alone was, however, inadequate to 
reconcile him to these things, or to keep him in London, where, 
we are told, his expenditure exceeded his receipts. More pru- 
dent than Cortes, who, when he landed in Mexico, burned his 
ships to render retreat impossible, he did not abandon his fellow- 
ship as he had done his poetry, nor did he cease to cultivate his 
Oxford connexions. On the contrary, he passed much of his 
time in that city, and engaged himself actively in university 
affairs. He was elected Bursar of his college ; and, in May 
1749, was so lucky as to obtain the appointment of Steward of 
the College Manors, and also to be elected Recorder of Wal- 
lingford, on the resignation of his uncle. In 1750, he took his 
degree of Doctor in Civil Law, and thereby became a member 
of the convocation. 



338 SIR WILLIAM BLACKSTONE. 

About this time the College of All Souls was troubled by the 
numerous claims of those who were related to Archbishop Chi- 
chele, the founder, by which they were prevented from electing 
"learned and ingenious individuals" into their society. This 
gave occasion to Blackstone's first publication — "An Essay on 
Collateral Consanguinity." In this pamphlet he endeavoured 
to prove, that as the Archbishop, by the canons of the Roman 
Church, could have no legitimate lineal descendants, the great 
lapse of time had extinguished collateral consanguinity, and that 
all mankind might be presumed equally akin to the founder. 
This doctrine was rather ingenious than convincing ; and when, 
in 1762, the college, acting on it, rejected the claim of one of 
the founder's kinsmen, who appealed to Archbishop Seeker as 
Visitor, the archbishop, with a common-law judge and a civilian 
as his assessors, decided in favour of the appellant, notwith- 
standing the argument of Blackstone, who was of counsel for 
the college. Afterwards, when raised to the bench, he was 
chosen by Archbishop Cornwallis as one of his assessors, and 
assisted in framing a regulation which did away with the incon- 
venience to the college, without much violating the intention of 
the founder. 

Although his hopes of advancement at Westminster Hall had 
been disappointed, and although he had sufficient employment 
at Oxford to make his time pass without tedium, and sufficient 
revenue to free him from anxiety, he was not deterred from 
attempting 

"Things unattempted yet in prose or rhyme." 

He formed the design of reducing into system the common law, 
which had hitherto lain in scattered fragments in the reports, or 
in large masses in the Institutes of Coke, " rudis indigestaque 
raoles" — of treating with elegance a subject on which the graces 
of composition had never before been bestowed — of teaching, in 
a place where it had never before been taught, a science which 
no one there desired to learn. With the dignity of a doctorship, 
the convivial society of a college, a respectable reputation, and 
an easy income, he persevered in his herculean undertaking, and 
completed his plan. With every inducement to indolence, he 



SIR WILLIAM BLACKSTONE. 339 

was not idle — with none of the ordinary motives of exertion, 
he worked : — 

" Fame is the spur that the clear spirit doth raise 
(That last infirmity of noble minds) 
To scorn delight, and live laborious days." 

Too much praise cannot be bestowed upon Blackstone, for hav- 
ing resisted all those temptations which have seduced so many 
men of promise, and which are, perhaps, harder to be overcome 
than any other of the difficulties that beset us in life. Too much 
gratitude cannot be paid to him by lawyers, for his gratuitous 
and invaluable present to his profession. It should be recollected, 
too, that he was not fluent in speech, and it may be inferred that 
his pen was not that of a ready writer. The composition of 
every sentence was probably an effort of mind ; and although 
his labour in collecting the materials for his work must have 
been incalculable, it cost him more pains to mould them into 
form. In confirmation of this we may mention, that, although 
a temperate man, he made use of the excitement of wine to 
quicken the operations of his mind, and that he composed the 
Commentaries with an inkstand on one side and a bottle of port 
on the other. 

It was most likely after Michaelmas Term, 1750, when he 
grew weary of 

"The drowsy Bench and babbling Hall," 

that he began to prepare his lectures upon the laws of England, 
which formed the basis of the Commentaries. In Michaelmas 
Term, 1753, he delivered his first course at Oxford. What with 
the novelty of the undertaking, and his own reputation at the 
University, he obtained a very numerous class, and many of the 
first men attended. In fact, his lectures became quite popular, 
perhaps as much from their strangeness as their excellence, and 
all the idlers of the University flocked to hear Dr. Blackstone 
lecture on the law. It is related of him, that during all the time 
he delivered these lectures, he never kept his audience wailing 
even a few minutes. It is some evidence that he had a consid- 
erable number of disciples, that in the next year, 1754, he pub- 



340 Sm WILLIAM BLACKSTONE. 

lished his Analysis of the laws of England, as a guide to those 
who attended his lectures. 

His fame had by this time extended itself beyond the narrow- 
precincts of Oxford, and his abilities had gained him the esteem 
of more discerning judges than the under-graduates of the Uni- 
versity. Thus, when, in the year 1752, the chair of civil law 
fell vacant, the Duke of Newcastle consulted Murray, then So- 
licitor-General, as to the person on whom to confer the appoint- 
ment. The Solicitor-General strongly recommended Dr. Black- 
stone. The Duke, with characteristic caution, desired to see 
the candidate, in order that he might himself form an opinion as 
to whether he was qualified in every respect for the office. Dr. 
Blackstone was accordingly introduced. " I presume," said his 
Grace, " in the event of any political agitations in the University, 
that your exertions may be relied upon in behalf of the govern- 
ment." " Your Grace may be assured that I will discharge my 
duty in giving law lectures to the best of my poor ability." 
" And your duty in the other branch too?" inquired the Duke. 
The doctor bowed. A few days afterwards Dr. Jenner was 
appointed Regius Professor of Civil Law. 

In this year. Dr. Blackstone was engaged as counsel in the 
strongly contested election for the county of Oxford. This gave 
occasion to his " Considerations on Copyholders," which, at the 
instance of his client. Sir Charles Mordaunt, he published. Sir 
Charles, however, did not rely on the ingenuity of Blackstone 
to unravel this Gordian knot, but more adroitly solved the diffi- 
culty by an act of parliament. 

He was now assessor in the Vice-Chancellor's Court, and 
one of the delegates of the Clarendon Press, which he much 
improved, and otherwise employed himself to the advantage of 
the University. 

In 1756, he resumed his attendance at Westminster, and he 
appears from this time until 1759 to have come up to town every 
winter, and shown himself in court each Michaelmas and Hilary 
Term, for the purpose, doubtless, of making himself known. 
He does not record that he was engaged in any cause. 

Mr. Viner having bequeathed a large sum of Money, and a 
larger abridgement of law, to the University of Oxford, for the 
purpose of instituting a professorship of common law, it became 



SIR WILLIAM BLACKSTONE. 341 

necessary to appoint a professor. All eyes were turned towards 
Dr. Blackstone as the fittest person for that office, and he was 
accordingly, on the 20th Oct. 1758, unanimously elected first 
Vinerian Professor. He lost no time in entering upon the duties 
of his professorship, and on the 25th of the same month delivered 
his Introductory Lecture on the Study of the Law, now prefixed 
to the Commentaries, which for elegance of composition is per- 
haps not excelled by anything in the language. 

His lectures soon became so celebrated, that he was requested 
to read them to the Prince of Wales (afterwards George the 
Third) ; but being at that time engaged with a numerous class 
of pupils at Oxford, whom he did not think it right to leave, he 
declined the honour. However, he transmitted copies for the 
prince's perusal, and his royal highness, far from being offended, 
sent the doctor a handsome present in acknowledgment of his 
merits. 

Thinking that he had now established a reputation from which 
he might reasonably hope for advancement, he resigned his em- 
ployments of assessor in the Vice-Chancellor's Court, and 
Steward of All Souls' Manors, and in June, 1759, purchased 
chambers in the Temple, where he came to reside ; only visiting 
Oxford at the periods required by the duties of his professorship. 
This time, his hopes, being better founded, were soon realized ; 
although we do not find that he appeared in court in any case of 
importance until Trinity Term 1760 ; nor, indeed, does it seem 
that he ever acquired much celebrity as an advocate. His name 
does not occur in the reports anything like so frequently as those 
of Norton, Morton, Dunning, &c., yet doubtless he obtained a 
considerable share of practice as a chamber counsel; and the 
opinion of one, who it was known had so thoroughly investi- 
gated the laws, must have been deemed valuable, and much 
sought after. 

Lord Chief Justice Willes and Mr. Justice Balhurst invited 
him to take the coif. This he declined, either not being ambi- 
tious of that ancient and honourable degree, or thinking that the 
expense more than counterbalanced the honour and privileges 
acquired thereby. So that now, instead of sitting in briefless 
despondency on the back benches, he actually had judges soli- 
citing him to plead in their courts. 



342 SIR WILLIAM BLACKSTONE. 

This year (1760) he published his edition of Magna Charta, 
and a tract on the Law of Descents. Tlie former work occa- 
sioned a short controversy between him and Dr. Lyttelton, Dean 
of Exeter, aftervvards Bishop of Carlisle. The dean had fur- 
nished Dr. Blackstone with an ancient roll, containing both the 
Great Charter and the Charter of the Forest, of which the doc- 
tor made no use, not deeming it original. The dean was angry 
that the authenticity of this family property (it belonged to his 
brother, Lord Lyttelton) should be doubted; he therefore exhi- 
bited his roll to the Society of Antiquaries, who returned him 
thanks, and decided in his favour. Out of respect to that learned 
body, of which he was now (May 1762) a member, Dr. Black- 
stone presented a memoir in support of his view of the ques- 
tion. The chief point in dispute between the dean and the 
doctor was, whether the great seal had ever been appended to 
this roll. The dean asserted that most indubitably it had, from 
the fact of some threads remaining, by which another piece of 
parchment had evidently been attached. The doctor contended 
that it was only the commencement of an old copy of statutes, 
and that the threads had probably connected it with other parch- 
ments containing the continuation, and proved, moreover, that it 
was not usual to attach the royal seal to a charter on a separate 
piece of parchment. He also furnished the society with a de- 
scription of an antique seal, in a letter to the Hon. Daines Bar- 
rington, which letter contains a very graphic account of the 
dispute between the prelates and popular party, in the reign 
of James the First, with respect to ecclesiastical jurisdiction. 
It is printed in the third volume of the Archasologia. 

The first cause of any interest which he was entrusted to 
argue, was that of Robinson v» Bland, in Trinity Term, 1760. 
The point in dispute was, whether a gaming debt, contracted in 
France, could be recovered in this country. Blackstone had to 
contend that it could not. His argument, if we may trust his 
own report, was elaborate and ingenious. The following pas- 
sage is extracted as a specimen : 

"It is suggested that this is a positive law : — that there is no 
vice in the contract — no moral turpitude in fair gaming. But 
is there any in stock -jobbing, in insuring the exportation of wool, 
in a marriage contract, or in suing out an original after six years 



SIR WILLIAM BLACKSTONE. 343 

are expired ? Yet no transaction of this kind will be counte- 
nanced in our courts, whether the cause of action arose at home 
or abroad. It is not a necessary ingredient to vitiate a foreign 
transaction, that it must be accompanied with moral turpitude. 
Reasons of foreign or domestic policy will make it frequently 
improper to enforce a contract against the positive law of the 
state. 

" But is there no degree of moral turpitude in excessive 
gaming, such as risking ^700 at a sitting ? There is at least 
extravagance, and probably distress to a man's self, his family, 
and dependents in every relation of life. Gaming to excess 
gives a loose to every furious passion that deforms the human 
mind. What this excess is the laws have ascertained. In 
gentlemen, by stat. 14 Car. II., it was ^eiOO at a sitting ; by 9 
Ann. it is £10 ; in tradesmen, by the Bankrupt Laws, it is £o. 

" This Court will not give a sanction to this fashionable vice, 
nor suffer our travelling nobility and gentry to fall a more easy 
prey to it than they are already. If they lose only ready 
money in France, our laws indeed cannot assist them ; but the 
loss is then limited, and the consequence less pernicious. But 
gaming on trust is big with ruin, which in its nature cannot be 
computed." 

Li the next cause in which he appears to have been engaged, 
the question argued was, in a legal point of view, decidedly the 
most interesting that ever came before the courts of this country, 
— namely, the common-law right of literary property. The 
action was brought by the sons and executors of the celebrated 
Jacob Tonson againsi one Collins, for pirating their copyright 
in the Spectator. The case was first argued in Trinity Term 
1761, by Wedderburn for the Tonsons, and Thurlow for Col- 
lins, and again in Michaelmas Term following, by Blackstone 
on the one side, and Yates on the other. Of Blackstone's ad- 
mirable argument we must content ourselves with giving the 
following passages, and doubt not that they will tempt our readers 
to refer to his Reports, where the perusal of the entire debate 
will aiford both instruction and delight: — 

" The Roman Law of Accession (hinted at in the former 
argument) was founded on very absurd principles. If one wrote 
a poem on another man's paper, the poem belonged to the owner 



344 SIR WILLIAM BLACKSTONE. 

of the paper, and not to the poet. Surely a satisfaction for the 
paper was all that the owner was entitled to. The same law, in 
the same breath, gives testimony of its own unreasonableness. 
If a picture be painted upon my tablet, it belongs to the painter. 
For it is ridiculous (says the emperor) that the painting of an 
Apelles or a Parrhasius should follow the property of a worth- 
less board. Certainly there is as little reason that the works of 
a Bacon or a Milton should become the property of the stationer, 
upon whose paper they might casually be written. But, absurd 
as this law is, it is not absurd enough to say, that the owner of 
the paper acquired any more than a right to that identical copy. 
It never supposed that he acquired a right to the sentiment, so as 
to multiply copies. For this being the usual way of rewarding 
the labour of an author, it would be unjust to make him a sharer 
in the reward who has been no sharer in the labour. It is the 
only species of property whereof authors are usually possessed; 
and it would be doubly hard to take from them their only means 
of subsistence. 

*' Printing is no other than an art of speedily transcribing. 
What, therefore, holds with respect to manuscripts, is equally 
true of printing. If an author has an exclusive property in his 
own composition, while it is in the mind, — when clothed in 
words,— when reduced to writing, — he still retains the sole 
right of multiplying the copies, when it is committed to the 
press. The purchaser of each individual volume has a right 
over that which he has purchased; but no right to make 
new books, and gain perhaps £500 at the original expense of 
only 55. 

" This answers Mr. Thurlow's question concerning the extent 
of the present remedy. ' Does it lie against the keepers of cir- 
culating libraries, who buy one book and lend it to a hundred to 
read?' Certainly not. The purchaser of a single book may 
make any use he pleases of it ; but no man, without leave from 
the author, has the right to rtiake new books, by multiplying 
copies of the old. If a man has an opera-ticket, he may lend 
it to as many friends as he pleases ; but he may not counterfeit 
the impression, and forge others. The owner of a single guinea 
may barter it, or lend it, as he pleases, but he may not copy the 
die and coin another. 



SIR WILLIAM BLACKSTONE. 345 

"It is necessary to sift this right to the bottom, and to argue 
upon principles, as it probably will be a leading precedent ; and 
it is more satisfactory, first to convince by reason, than merely to 
silence by authority." 

In his reply, he thus ably distinguishes between literary pro- 
ductions and mechanical inventions : — 

" Style and sentiment are the essentials of a literary compo- 
sition. These alone constitute its identity. The paper and 
print are merely accidents, which serve as vehicles to convey 
that style and sentiment to a distance. Every duplicate, there- 
fore, of a work, whether ten or ten thousand, if it convey the 
same style and sentiment, is the same identical work which was 
produced by the author's invention and labour. But the dupli- 
cate of a mechanic engine is, at best, but a resemblance of the 
other, and a resemblance never can be the same identical thing. 
It must be composed of different materials, and will be more or 
less perfect in the workmanship. Although, therefore, the in- 
ventor of a machine may not be injured at common law, by the 
sale of a work made like his, it will not follow, that an author 
is not injured by the surreptitious sale of a work that is abso- 
lutely and specifically his own. The proprietors of the Spec- 
tator were not injured by the sale of the Rambler, which re- 
sembled their composition ; but we say they are now injured by 
the sale of the Spectator itself. 

" There is a distinction, then, in the nature of the things 
compared together; and there is also a distinction arising from 
public convenience. Mechanical inventions tend to the improve- 
ment of arts and manufactures, which employ the bulk of the 
people ; therefore they ought to be cheap and numerous ; every 
man should be at liberty to copy and imitate them at pleasure ; 
which may tend to further improvements. However, a tempo- 
rary privilege maybe indulged to the inventor for a limited time, 
by the positive act of the state, by way of reward for his in- 
genuity. This inconvenience will soon be over, and then the 
world will remain at its natural liberty. But as to science, the 
case is different. That can, and ought to be, only the employ- 
ment of a few. And one printing-house will furnish more 
books than any nation can find able readers ; which differs it 
still more from the case of mechanics, of which very few in 

23 



34G SIR WILLIAM BLACKSTONE. 

comparison can be constructed, under the inspection of the 
aullior." 

Tiiis last sentiment is not exactly in accordance with the spirit 
of tfie present times, or the principles of the Society for the 
Diffusion of Useful Knowledge. 

This case, which was the first in which the common-law 
right of literary property was mooted, is only reported by 
Blackstone. The judges were of opinion for the plaintiff, but 
it was carried, on account of its importance, into the Exchequer 
Chamber. It was then discovered that the defendant was 
merely nominal, and that all the expenses were paid by the 
Tonsons ; in consequence of which the judges refused to give 
judgment. Blackstone afterwards argued in support of the same 
side of the question, in Millar v. Taylor; and when, in 1774, 
the conclusive case of Donaldson v. Beckett came before the 
House of Lords, he showed by his judicial opinion that he had 
argued from conviction. 

In 1761, the appointment of Chief Justice of the Common 
Pleas for Ireland was offered to him, which he declined. In 
March of the same year, he was returned to Parliament for 
Hindon, in Wiltshire, and on the 6th of May following was 
gratified with a patent of precedence. . The day before this he 
was married to the daughter of James Clitherow, Esq., of 
Boston House, in the county of Middlesex, the then representa- 
tive of an old family in that county, and grandfather of the pre- 
sent possessor. Honours and happiness thus flowed in thick 
upon him. 

By liis marriage he vacated his fellowship, yet was he not a 
loser, for the Earl of AVestmoreland, the Chancellor of the Uni- 
versity, in the July foUov^ing appointed him Principal of New 
Inn Hall. This not only gave him an additional dignity in the 
University, but afforded him an agreeable residence when he 
w^ent there to deliver his lectures. He had it in contemplation 
to make New Inn Hall a society for students of the common 
law, by annexing the Vinerian Professorship to the Principality, 
and constituting Mr. Viner's fellows and scholars members of 
that Hall. But this plan was not approved by the Convocation. 

His presence at Oxford was so much desired, or his profes- 
sorship so much coveted, that an attempt was made to take 



SIR WILLIAM BLACKSTONE. 347 

from him the power of appointing a deputy to read the solemn 
lectures, one of which is directed to be read every academical 
term. Upon this he printed a statement of his case for the use 
of the Members of Convocation, and the ungenerous proposition 
was heard of no more. 

Upon the establishment of the Queen's household, 1763, Dr. 
Blackstone was appointed her Majesty's Solicitor-General, and 
at the same time was chosen a Bencher of the Middle Temple. 

Before this he had collected his Tracts, and published them 
in two volumes octavo; and in 1765 appeared the first volume 
of the Commentaries. Thus there was an interval of twelve 
years between the delivery of his lectures at Oxford and the 
pubhcation of the Commentaries ; and although it has been re- 
marked that at the time Blackstone wrote his great work he had 
seen but httle practice, it was doubtless considerably improved 
by his subsequent experience. Of the Commentaries so much 
has been said, that it is almost impossible to say anything new. 
We will speak of them, then, in the words of a master, — one 
who, having investigated their foundation, is competent to judge 
of the learning displayed in them, and who, being himself 
gifted with a congenial mind, is qualified to speak of their ele- 
gance. " It is easy," says Mr. Justice Coleridge, " to point 
out their faults ; and their general merits of lucid order, sound 
and clear exposition, and a style almost faultless in its kind, are 
also easily perceived, and universally acknowledged ; but it re- 
quires, perhaps, the study necessarily imposed upon an editor, 
to understand fully the whole extent of praise to which the 
author is entitled : his materials should be seen in their crude 
and scattered state ; the controversies examined, of which the 
sum only is shortly given : what he has rejected, what he has 
forborne to say, should be known, before his learning, judgment, 
taste, and, above all, his total want of self-display, can be justly 
appreciated." 

Like a bee among the flowers, Blackstone has extracted the 
sweet essence of all former writers, and left their grosser matter. 
We find in the Commentaries the copious learning of Coke, 
the methodical arrangement of Hale, Gilbert, and Foster, com- 
bined with the smooth and pleasing style of Addison and Pope. 
The publication of them formed an era in legal literature, and 



348 SIR WILLIAM BLA.CKSTONE. 

since their appearance law-treatises have not been by any means 
so much as formerly a mere collection of decided points, loosely 
strung together, with' little to connect them and nothing lo 
explain, more valuable for the references in the margin than the 
matter in the text. The design of Blackstone is to give a gene- 
ral statement of the doctrines of our law, and a general account 
of our political insiitutions. In this he has been eminently suc- 
cessful ; but we are not to expect to find those doctrines dis- 
cussed upon principles of jurisprudence, or those institutions 
inquired into with regard to any Utopian theory. He is rather 
la historian than a philosopher, and his occasional remarks are 
made rather for the purpose of explaining the law, than of 
proving its reasonableness or its authority. 

It would have been singular if a work of such high authority, 
relating to topics of such general interest, had appeared without 
exciting animadversion. His remarks on the constitution were 
obnoxious to the Whigs ; his comments on the penal laws 
relating to religion were displeasing to the Dissenters. For his 
political opinions he has been attacked by Bentham and Sheridan, 
perhaps as much from a desire of gaining reputation by a 
pamphlet, as from any special anxiety for the truth. His ob- 
servations on the laws against nonconformity produced some 
acrimonious remarks from Priestley, which Blackstone, con- 
ceiving his sentiments on religious liberty to have been 
misimderstood, answered. To this answer Priestley, never 
unwilling to appear in print, pubhshed a reply in the same spirit 
as his original comments. Dr. Furneaux also addressed to him 
some tedious letters on his exposition of the Toleration Act. 
All his adversaries acknowledged the high merit of the Commen- 
taries, and accompanied their strictures \vith a compliment. It 
must be admitted that Blackstone had displayed an undue 
partiality for the harsh and intolerant laws of Elizabeth and 
Charles; and although, to his great credit, he modified his 
remarks thereon in subsequent editions, they are still such as a 
liberal mind cannot altogether approve. 

The legal accuracy of the Commentaries was, generally 
speaking, unimpeachable. It will be found, however, that the 
law as to the meeting of commissioners of bankrupts and choice 
of assignees was altogether wrong in the first edition ; but this, 



SIR WILLIAM BLACKSTONE. 349 

on the intimation of one of the commissioners, was corrected in 
the second. Such trivial faults in a work of such general ex- 
cellence are like spots in the sun, which do not diminish its 
brightness, yet deserve to be noticed for their singularity. 

The Commentaries passed through eight editions in the life 
of the author. The last edition, by Lee, Hovenden, and Ryland, 
is called the eighteenth,* besides numerous heterodox impres- 
sions. In 1771, an edition was printed at Philadelphia, to which 
there were no fewer than 1600 subscribers. One attorney 
orders thirty-one sets, another twenty-eight. The attorneys in 
those parts were very liberal to their clients, or else they sold 
books. 

In this year (1765) a transaction occurred in which Black- 
stone was concerned, and which, for want of something better, 
may be mentioned as an incident. One Dr. Musgrave, one of 
those finders of mares' nests who occasionally exhibit themselves 
and their discoveries for the laughter of mankind, was told by a 
casual acquaintance at Paris that the French government had 
bribed Lord Bute, Lord Holland, and a lady of title whose name 
he knew not, in order to induce the English to grant a peace. 
Distended with importance as being the depository of so great a 
mystery, he hastened to London, determined to cause a search- 
ing inquiry into this matt&r. Having some knowledge of Dr. 
Blackstone, he advised with him as to the steps he should take ; 
and, according to his account, Blackstone, upon reading his 
written statement, " trembled, seemed much affected, and let the 
paper drop, as in great agitation," and said, "You must by all 
means go to the ministry ; it is an affair of an alarming nature." 
Three days afterwards, Blackstone sent a note desiring to see 
Dr. Musgrave, and when the Doctor waited on him, asked if he 
had been to the ministry, and said, "If you had not, I should 
think myself obliged, as a servant of the crown, to go and give 
the information myself." This statement, if true, would make 
Blackstone appear a most remarkably credulous and timid man, 
since every other person to whom Dr. Musgrave mentioned his 
story (among whom were Lord Halifax and Colonel Barre) con- 

* Several others have appeared since this was writlen, besides Mr. 
Serjeant Stephen's "New Commentaries, partly founded on the text 
of Blackstone." 



350 SIR WILLIAM BLACKSTONE. 

sidered it merely as idle gossip ; and such was the unanimous 
opinion of the House of Commons, when, Dr. Musgrave having 
published a pamphlet on the subject, a Committee was appointed 
to inquire into the matter. Blackstone, however, read before the 
Committee a minute taken by him at the time, which gives a 
very different account of the affair. He says — "As the acquaint- 
ance between Dr. Musgrave and myself was small, I was sur- 
prised at the communication. I told him that the affair was 
delicate both as to things and persons, and that he should well 
consider the consequences if his friend should deny it. I begged 
to be excused advising him, but that he would do right to con- 
sider that it would depend on the conviction of his own mind 
and his friend's veracity. It was equally a duty to disclose such 
a transaction if on good foundation, and to stifle it in the birth if 
founded on malice or ignorance. We parted. He seemed in- 
clined to proceed. I do not recollect the conversation he men- 
tions three days afterwards. It might be. I thought him such 
an enthusiast that the information might have disordered his 
imagination."* 

This by way of episode. In 1766, Blackstone resigned his 
employments at Oxford, viz. the Vinerian Professorship and 
the Principality of New Inn Hall, finding his engagements in 
London inconsistent with an attendance to the duties of those 
offices. 

In the Parliament of 1768, Blackstone was returned for West- 
bury, in Wiltshire. He is not reported to have taken any part 
in the proceedings of the House, until the case of Wilkes set the 
country in a blaze in 1769. The question mooted in this case 
being one of great constitutional and legal importance. Dr. Black- 
stone took part in the discussion. On the 1st of February, 1769, 
he moved that Wilkes's petition, respecting the alteration of the 
record of the indictment against him by Lord Mansfield, "was 
an audacious aspersion on the Chief Justice, calculated to convey 
a gross misrepresentation of the fact, and to prejudice the minds 
of the people against the public administration of justice." He 
spoke also in support of the motion for expelling Mr. Wilkes 
the House, grounding himself on the publication of the " three 

* 16 Pari. Hist. 778,781. 



SIR WILLIAM BLACKSTONE. 351 

obscene and impious libels." And again, when the resolution 
was moved, " that John Wilkes, Esq., having been in this ses- 
sion of Parliament expelled this House, was and is incapable of 
being elected a member to serve in this present parliament," Dr. 
Blackstone argued in favour of the resolution. Mr. Grenville 
replied to him, and quoted a passage from the Commentaries, 
which was thought a powerful argumentum ad hominem. " In- 
stead of defending himself upon the spot," says Philo Junius, " he 
sunk under the charge in an agony of confusion and despair. It 
is well known that there was a pause for some minutes in the 
House, from the general expectation that the Doctor would say- 
something in his defence, but his faculties were too overpowered 
to think of those subtleties and refinements which have since 
occurred to him." Sir Fletcher Norton, however, more expert 
in debate, stood the Commentator's friend, and took Grenville to 
task. The only remnant of the debate is the following remark 
addressed by Sir Fletcher to Mr. Grenville: — "I wish the 
honourable gentleman, instead of shaking his head, would shake 
a good argument out of it." It must have been entirely owing 
to Blackstone's inaptitude to speak that he did not reply to Gren- 
ville, since the passage cited from the Commentaries did not 
really bear against him. It was an enumeration of disqualifi- 
cations to serve in Parliament, not mentioning the case of expul- 
sion, and concluding with these words, — " but, subject to these 
restrictions and disqualifications, every subject of the realm is 
eligible of common right," which merely meant that eligibility 
was the general rule, and ineligibility the exception ; and it was 
unreasonable to expect that every exception would be particu- 
larly set forth in a work of the general nature of the Commenta- 
ries. 

It was considered so important an object to deprive the minis- 
try of the authority of Blackstone, that the point which the par- 
liamentary skill of Grenville had made was reiterated upon the 
Commentator, in a pamphlet by Sir William Meredith. To 
vindicate himself, Blackstone published another pamphlet. This 
caused him to be attacked by Junius, and he answered Junius in 
a postscript of six quarto pages. A more elaborate production is 
attributed to him on this subject, entitled, "The Case of the 
late Election for the County of Middlesex considered on the 



352 SIR WILLIAM BLA.CKSTONE. 

principles of the Constilulion and the authorities of Law." 
Whatever may be the opinions entertained at the present day 
concerning the proceedings against Wilkes, it is unfair to sup- 
pose that the part Blackstone took therein was not the result of 
sincere conviction, for there is nothing unreasonable or absurd in 
the opinion, that an individual who is obnoxious to the criminal 
laws of a country is unfit to be a legislator, and that when 
a member is expelled by the House of Commons, their decisions 
shall be binding upon the people to prevent their again returning 
him ; and it is worthy of remark, that Grenville had in a 
former debate referred to Walpole's case (the authority relied on 
by Blackstone), and strongly insisted that the law of Parliament 
established in that case was, that expulsion created only a tem- 
porary and not a perpetual incapacity in the party expelled.* 

These personal collisions within the House of Commons, and 
printed controversies without, so litde in accordance with tlse 
philosophical habits of the Commentator, were sufficient to 
quench his moderated ambition. He therefore refused the Soli- 
citor-Generalship, which was offered to him by Lord North on 
the resignation of Dunning, in January 1770; and it was not 
until the March following that the vacancy was filled by Thur- 
low, a man every way more adapted to political contention. 
Blackstone was appointed to the more congenial situation of a 
Judge of the Common Pleas, on the resignation of Mr. Justice 
Clive; and on the 9lh of February kissed his Majesty's hand. 
He was of course called to the degree of Serjeant, and gave rings 
with the motto " Secundis dubiisque rectus.'''' But Mr. Justice 
Yates being desirous to retire'^ (we use the words of Blackstone 
himself) "into the Court of Common Pleas, I consented to ex- 
change with him ; and accordingly (February 16th) I kissed his 
Majesty's hand on being appointed a Judge of the King's 
Bench, and received the honour of knighthood." Sir Joseph 
Yates did not long survive his retirement, for on the Whit- 
Sunday following he was taken ill at church, and died on the 
Thursday, " to the great loss of the public, and the Court of 
Common Pleas in particular, wherein he sat one term only," 
quoth Serjeant Wilson. On this event, Sir William Blackstone 

* 16 Par]. Hist. 562. 



SIR WILLIAM BLACKSTONE. 353 

likewise retired into the Court of Common Pleas, " which," 
says Burrow, " he was always understood to have in view when- 
ever opportunity offered." 

Although greater leisure, combined with an equal share of 
dignity, had doubtless induced Blackstone to prefer the judg- 
ment-seat of the Common Pleas to that of the King's Bench, he 
was by no means negligent in the performance of the duties of 
his office. There are several very elaborate judgments of his 
in his own reports, upon recondite points of law, which display 
a range of reading and diligence of investigation rarely equalled. 
The Court of Common Pleas, during the time of Blackstone, 
like the King's Bench during the presidency of Lord Mansfield, 
differed in opinion only upon two cases. In both Blackstone 
was the dissentient. The first was the well-known case of 
Scott V. Shepherd, (2 AV. Bl. 892,) relative to the distinction 
between actions of trespass and on ihe case. The judgment 
of Blackstone is often referred to, on account of the lucidness 
with which the doctrine on the subject is stated and explained, 
and his application of it is generally considered the more satis- 
factory. The other case was Goodright dem. Rolfe v. Har- 
wood, (2 W. Bl. 937,) in which the judgment of the Common 
Pleas was unanimously reversed by the King's Bench, and that 
reversal was confirmed by the House of Lords, upon the opi- 
nion of the Barons of the Exchequer. The judgment, too, of 
the Commentator in the celebrated case of Perrin v. Blake, (I 
W. Bl. 672,) is one of the most valuable pieces of legal reason- 
ing upon record. We cannot, therefore, agree in the remark of 
Mr. Roscoe, that " after the publication of the Commentaries, 
the legal acquirements of Blackstone rather declined than 
advanced." His abilities always shone with an equal lustre 
as an author, an advocate, and a judge; of which the argument 
in Tonson v. Collins, and tlje judgment in Perrin v. Blake, are 
sufficient to convince us. 

Blackstene did not allow those intervals of leisure which he 
had been so anxious to obtain, to pass unprofitably away. It is 
not the least of his merits, that he was among the earliest in 
advocating the Penitentiary system of prison discipline, which 
has been so eminently successful in America, and will ere long, 
it is to be hoped, become the means of diminishing crime 



354 SIR WILLIAM BLACKSTONE. 

throughout the world. In conjunction with John Howard, that 
glory of humanity, he was instrumental in procuring the enact- 
ment of the Stat. 19 Geo. 3, c. 74, for erecting penitentiary 
houses for the confinement of prisoners, as a substitute for trans- 
portation. This, like most other important benefits to mankind, 
was destined at first to be ridiculed and neglected, and the origi- 
nal propounders obtained no credit from it. Men, when they 
cannot perceive the extent or advantage of an invention, conceal 
their ignorance beneath the mask of contempt. Now that the 
utility of these things cannot be denied, let us not forget to 
praise those who discovered them before us. Howard and 
Blackstone may be insensible to our applause, but it is a conso- 
lation and encouragement to neglected genius, to think that, 
although now despised, his memory may be held in reverence 
by posterity. 

7'here was another affair in which he busied himself, more 
personally interesting to himself, but not on that account the less 
beneficial to the public. This was an augmentation of the 
judges' salaries. These being found insufficient to support the 
judicial dignity, by reason of the heavy taxes, and more expen- 
sive mode of living, ^8400 was added to the salary of each 
puisne judge. 

Amidst these public and general undertakings, he did not 
overlook the improvement of the neighbourhood where he 
resided. He passed his vacations at a villa called Priory Place, 
near Wallingford, now in the possession of his grandson, the 
present member for Wallingford. Here, by his activity and 
influence, he procured two turnpike roads to be made through 
the town, by which the malt trade was considerably increased. 
He also promoted the rebuilding of St. Peter's Church there, 
of which he planned the elevation ; and erected the spire, so 
universally admired for its lightless. and elegance, at his own 
expense. At the request of the trustees of Sir George Down- 
ing, he had undertaken to frame a code of statutes for Downing 
College, Cambridge, then about to be established, but this he 
was prevented from completing by his death. 

Now that it was not necessary for him to devote himself 
exclusively to business, he again indulged in literary pursuits, 
which we may imagine were most congenial to his nature. The 



SIR WILLIAM BLACKSTONE. 355 

only fruits of his subsequent literary labours of which we are 
aware, are "An Account of the Dispute between Addison and 
Pope," communicated to Dr. Kippis, and by him published m 
the "Biographia Britannica," in the life of Addison; and some 
notes upon Shakspeare, which are published in Malone's edition 
of 1780, marked by the final letter of his name. It is hardly 
necessary to observe, that both of these productions are charac- 
terized by the pure style and lucid order of Blackstone. The 
first has been praised by Mr. D'Israeli, a very high authority on 
such subjects. 

In this calm and useful manner passed the latter years of 
Blackstone's life. Having attained the fulness of his fame, he 
wore away his time, now hearing and deciding disputed points 
of law — now promoting plans of public improvement — now 
narrating the quarrels generis irritabilis poetarum, as a river 
swelled by all its tributary streams flows calmly towards the 
sea, fertilizing the country in its course, and rendering the land- 
scape beautiful. 

The sedentary employments in which Blackstone delighted 
were not conducive to health. As he advanced in age he became 
corpulent, and was occasionally visited by gout, dropsy, and 
vertigo. In the Christmas of 1779, he was attacked by a vio- 
lent shortness of breath. Of this he was so far relieved by the 
Application of the remedies usual in cases of dropsy, as to be 
able to come to town for the purpose of attending Court in 
Hilary Term. He had hardly arrived ere his malady returned 
in a more formidable shape ; and after lying in a state of insen- 
sibility for several days, he expired at his house in Lincoln's Inn 
Fields, on the 14th of February, 1780, being in the 57ih year 
of his age. He was buried at St. Peter's Church, Wallingford ; 
his friend Dr. Barrington, Bishop of LlandafF, officiating at his 
funeral. 

His only posthumous honour was the following rude distich, 
which appeared in the public prints of the day : — 

"He's gone whose talents charm'd the wise, 
Who rescued law from pedant phrase, 
Who clear'd the student's clouded eyes, 
And led him through the legal maze." 

He left behind him seven children : Henry, James, William, 



356 STR WILLIAM BLACKSTONE. 

Charles, Sarah, Mary, and Philippa ; llic eldest only sixteen 
years of age. Henry Blackstone, the reporter, was his nephew, 
and died from the effects of over exertion in his profession. Of 
his sons, James enjoyed nearly the same University preferments 
as his father ; he was Fellow of All Souls, Principal of New 
Inn Hall, Vinerian Professor, Deputy High Steward, and 
Assessor in the Vice-Chancellor's Court. He died in 1831, 
having resigned the Assessorship in 1812, and the Vinerian 
Professorship in 1824. 

The chief characteristics of Blackstone appear to have been 
prudence and industry ; we perceive him calmly and gradually 
working his way from obscurity to eminence, undeterred by 
disappointment or neglect. He never abandoned a good pos- 
sessed for a contingent benefit ; thus, when he found his chance 
of advancement at the bar less than it was at the University, he 
went to settle at Oxford ; still, however, persevering in profes- 
sional pursuits. He did not venture to enter into the blissful 
estate of matrimony (although he was a man domestically 
inclined) until he found he could safely dispense with his fel- 
lowship : and he preferred the less prominent, but more secure, 
station of a puisne judge of the Common Pleas, to the slippery 
path of a political advocate. 

His mind was rather discerning than vigorous, calculated 
rather to form a judgment on and explain existing things, than 
to strike into a new path and boldly advance an original theory. 
He shrank from controversy, and sought rather to instruct the 
ignorant than to dispute with the learned. Thus it was that he 
excelled in delivering lectures from the professor's chair, but did 
not so well succeed in forensic arguments or political debates. 
When he had considered a question, he could elegantly and 
lucidly state and explain his opinion ; but he could not readily 
answer an unanticipated objection, or retort upon a contumelious 
adversary. There could hardly have been a mind better consti- 
tuted for the judgment-seat, — too cautious to abandon precedents, 
and too clear to misapply them. Cool and deliberate, he was 
not likely to be misled by a fallacy, nor to decide on a hasty 
impression : and we cannot but think that Blackstone is not 
reckoned amongst our first judicial characters, only because he 
did not occupy the most eminent station. 



SIR WILLIAM BLACKSTONE. 357 

It may be inferred from what has been said, that he was no 
enthusiast either in rehgion or in politics ; in the former he was 
a sincere believer in Christianity, from a profound investigation 
of its evidences ; in the latter he was what would be now called 
a Conservative, friendly to a mild but authoritative government, 
inimical to the agitations of pretended patriots. 

In private life we are told he was an agreeable and facetious 
companion, tender and affectionate as a husband, father, and 
friend ; strict in the discharge of every relative duty : towards 
strangers he was reserved, which to some appeared to proceed 
from pride. His temper was rather remarkable for irritability, 
which in his latter years was increased by his bodily infirmities. 

There may have been more shining characters, of whom we 
read with deeper interest, but there have been few men more 
useful in their sphere, few whose example we can contemplate 
more profitably, (ew who better realized the wish so happily 
expressed by himself : — 

« Untainted by the guilty bribe, 
Uncursed amidst the harpy tribe ; 
No orphan's cry to wound my ear, 
My honour and my conscience clear; 
Thus may I calmly meet my end — 
Thus to the grave in peace descend." 



LOUD BATIIUllST 



The author of certain " Strictures" on the lives of the emi- 
nent lawyers of his time (published in 1790) introduces his 
notice of Lord Bathurst in the following terms: — "We may 
boldly write down, that the Earl of Bathurst became a great 
character perforce; he was nursed in a political hot-bed, and 
raised j^er fas et nefas. Nothing less than the same necessity 
introduces his Lordship's name in the same page with those 
illustrious personages, which it is the purpose of this volume to 
portray." Without admitting the justice of such unqualified 
depreciation as this, it cannot be denied that the personal qualities 
of the noble lord, either as a lawyer or a statesman, would hardly 
of themselves have invested him with any claim to posthumous 
commemoration. But the attainment of the Great Seal, the 
object of all a lawyer's hope and veneration, of itself entitles its 
possessor to a place among the worthies of the profession, and 
to a niche, though none of the most conspicuous, in our gallery 
of legal dignitaries. 

The family of Bathurst is one of very considerable antiquity. 
According to Jacob, its ancestors were originally settled in the 
principality of Luneburg, at a place called Batters, whence 
they bore that name ; and some of them passing into England, 
in the tenth century, established themselves near Battle, in Sus- 
sex, and gave their residence the name of Batters' Hurst — that 
is, Batters' Grove, — which was afterwards abridged into Ba- 
thurst. In the course of the dissensions between the houses of 
York and Lancaster, Lawrence Bathurst, the then representative 
of the family (whose father had been killed at the battle of St. 
Albans, fighting in the ranks of the Lancasterians), was deprived 
of this property in Sussex, which was annexed by the crown to 
Battle Abbey. He retained, however, lands in Staplehurst, 



LORD BATHURST. 359 

Canterbury, and elsewhere in the county of Kent, which he had 
acquired by his successful industry in the woollen manufacture, 
in those ages the staple trade of the Weald of Kent, and to 
which many of the long-descended gentry of that county — the 
Ongleys, the Courthopes,theMaplesdons,&c. &c. — are indebted 
for their first advance to wealth and consequence. George Ba- 
thurst, the third in descent from this Lawrence, was the father 
of several children, of whom the celebrated wit and scholar. Dr. 
Ralph Bathurst, president of Trinity College, Oxford, was the 
eldest; and the youngest was Benjamin, who became, in the 
reign of Charles II., Governor of the East India and African 
companies, attained the honour of knighthood, and filled the 
office of treasurer in the household of Queen Anne, when Prin- 
cess of Denmark. By his wife Frances, the daughter of Sir 
Allen Apsley of Apsley in Sussex, Falconer to Charles II., Sir 
Benjamin had several children, the eldest of whom was Allen, 
afterwards created, in Queen Anne's celebrated batch of Tory 
peers. Lord Bathurst of Battlesden, in Bedfordshire. 

Of him, the convivial intimate of Pope and Swift, and of all 
the brilhant circle of that Augustan age of literature, it is super- 
fluous to speak to any reader to whom the literary history of 
their time is not altogether a sealed book. In Parliament, a 
fluent and impassioned speaker, a skilful and prtictised debater, 
lie maintained an unabated opposition to the government of Sir 
Robert Walpole during the whole of his long monarchy of 
power, and was regarded as one of the chief champions of Tory- 
ism in the House of Lords. In private life, amiable, benevolent, 
affectionate, convivial, and witty, he endeared himself to a circle 
of friends, larger and more distinguished for eminence of every 
kind than it falls to the lot of many men, of whatever rank, to 
have conciliated. His seat of Oakley Grove, near Cirencester, 
adorned by his taste with extensive and beautiful plantations, 
which he lived long enough to see matured into noble woods, 
beheld partakers of its hospitality the noble, the witty, and the 
learned of successive generations. Sterne gives an interesting 
account of his introduction to him in his old age: — " He came 
up to me one day, as I was at the Prince of Wales's Court ; — 
-' I want to know you, Mr. Sterne -, but it is fit that you should 
know also who it is that wishes that pleasure. You have heard 



360 LORD BATHURST. , 

of an old Lord Bathurst, of whom your Popes and Swifts havrj 
sung and spoken so much. I have lived my life with geniuses 
of that cast, but have survived them ; antt'despairing ever to find 
their equals, it is some years since I have cleared my accounts, 
and shut up my books, with thoughts of never opening them 
again. But you have kindled a desire in me of opening them 
once more before I die, which now I do; so go home and dine 
with me.' This nobleman, I say, is a prodigy ; for at eighty- 
five he has all the wit and promptness of a man of thirty ; a 
disposition to be pleased, and a power to please others, beyond 
whatever I knew ; added to which, a man of learning, courtesy, 
and feeling." He did indeed live long enough to survive all the 
illustrious associates of his early manhood, but he lived also to 
enjoy the rare fortune of seeing his son presiding over the dig- 
nified assembly in which he had himself achieved so much dis- 
tinction, — a fortune which none but the father of Sir Thomas 
More had known before him, — and to receive at the hands of 
that son the patent of an earldom.* 

The magnificent passage, in which Burke applied this signal 
instance of worldly felicity to illustrate the eloquent arguments 
so vainly reiterated against a blind and fatal perseverance in 
misgovernment, often as it has been admired and quoted, is too 
apposite to our subject to be omitted here. " The growth of our 
national prosperity," said the orator, in his speech on the con- 
ciliation of America, " has happened within the short period of 
the life of man. It has happened within sixty-eight years. 
There are those alive whose memory might touch the two ex- 
tremities. For instance, my Lord Bathurst might remember all 
the stages of the progress. He was in 1704 of an age at least 
to be made to comprehend such things. He was then old enough 
acta par entum jam legere^ etquse sit poterit cognoscere virtus. 
Suppose, Sir, that the angel of this auspicious youth, foreseeing 
the many virtues which made him one of the most amiable, as 
he is one of the most fortunate, men of his age, had opened to 
him in vision, that when, in the fourth generation, the third prince 
of the House of Brunswick had sat twelve years on the throne 

* He was created, in 1772, Earl Bathurst, of Bathurst, in the county 
of Sussex. 



LORD BATHURST. 361 

of that nation, which, by the happy issue of moderate and heal- 
ing councils, was to be made Great Britain, he should see his 
son. Lord Chancellor of England, turn back the current of he- 
reditary rank to its fountain, and raise him to a higher rank of 
the peerage, whilst he enriched the family with a new one. If, 
amidstr these bright and happy scenes of domestic honour and 
prosperity, that angel sho\ild have drawn up the curtain, and 
unfolded the rising glories of his country, and whilst he was 
gazing with admiration on the then commercial grandeur of 
England, the genius should point out to him a little speck, scarce 
visible in the mass of the national interest, a small seminal prin- 
ciple, rather than* a formed body, and should tell him, ' Young 
man, there is America, which at this day serves for little more 
than to amuse you with stories of savage men and uncouth man- 
ners ; yet shall, before you taste of death, show itself equal to 
the whole of that commerce which now attracts the envy of the 
world.' .... If this state of his country had been foretold to 
him, would it not require all the sanguine credulity of youth, and 
all the fervid glow of enthusiasm, to make him believe it ? For- 
tunate man, he has lived to see it! Fortunate, indeed, if he 
lives to see nothing that shall vary the prospect, and cloud the 
setting of his day !" — And he did not: a few months after those 
eloquent sentences were uttered, he died peacefully, full of years 
and honour, at the great age of ninety ; having retained to the 
close of his protracted life, not only the cheerful and happy tem- 
per, but even the personal activity, and the relish for convivial 
enjoyments, which had distinguished him from his youth up. 
Until within a month of his death, he regularly rode out on 
horseback for two hours in the morning, and drank his bottle of 
wine after dinner; and used jocosely to declare, that he never 
could think of adopting Dr. Cadogan's water regimen, inasmuch 
as, no less than fifty years before. Dr. Cheyne had assured him 
he would not live seven years, unless he determined to abridge 
himself of his wine. A well-known anecdote relates of him, 
that havmg, about two years before his death, invited a party of 
friends to his seat near Cirencester, and their conviviality being 
protracted one evening to a pretty late hour, his son, the Chan- 
cellor, objecting to so long a sitting, and dilating on the benefit 
of regular hours to health and longevity, was suffered to retire 

24 



SG2 LORD BATHURST. 

to his cliamber ; but no sooner had he gone tlian the jovial father 
cried : " Come, my good friends, since the old gentleman is gone 
to bed, I think we may venture to crack another bottle!"* 

Allen Lord Bathurst married, early in life, his cousin-german, 
the only daughter of Sir Peter Apsley, by whom he had nine 
children, four sons and five daughters. In one of his letters 
to Swift, of the date of 1730, alluding laughingly to the Dean's 
humorous proposal to relieve the poor of Ireland by fattening 
their children for the table, he says : " I did immediately propose 
it to Lady Bathurst as your advice, particularly for her last boy, 
which was born the plumpest and finest thing that could be seen ; 
but she fell into a passion, and bid me send you word that she 
would not follow up your direction, but that she would breed 
him up to be a parson,t and he should live upon the fat of the 
land; or a lawyer, and then, instead of being eat himself, he 
should devour others. You know women in a passion never 
mind what they say ; but as she is a very reasonable woman, I 
have almost brought her over now to your opinion; and have 
convinced her that, as matters stood, we could not possibly 
maintain all the nine ; she does begin to think it reasonable 
that the youngest should raise fortunes for the eldest." This 
eldest was Benjamin, who died without issue in 1767; of the 
second son, Henry, we are now to give a somewhat more par- 
ticular account. 

He was born on the 20th of May, 1714, and having gone 
through the usual course of school discipline, was entered of 
Christchurch, Oxford, where he graduated B. A. in the year 
1733. He had in the meantime kept terms at Lincoln's Inn, 
and in Hilary Term, 1735-6, was called to the bar by that 
society. The practice he obtained was of a very limited nature, 
and certainly altogether inadequate to account for his subsequent 
elevation. His name occurs very unfrequently in the reports ; 
in the State Trials we meet with him on one occasion only, as 
leading counsel for the prosecution in the extraordinary case of 
Mary Blandy, tried for the poisoning of her father at the Oxford 

* The obituaries of the day cite this story as a proof of the grave 
and temperate habits of the Chancellor when a young man. The hope- 
ful youth was at that time about the ripe age of sixty. 

f This was his ultimate destination. 



LORD BATHURST. ^ 363 

Assizes, 1752-: — ^(it is worthy perhaps of remark, that he exer- 
cised the right of replying upon the evidence adduced for the 
prisoner.) His professional views, however, were, as was natural 
from his father's large party connexions, made subservient to, or 
at least dependent on, his political. He was introduced into 
Parliament at the first opportunity afforded him after he attained 
his majority; being returned at the general election of 1735 for 
Cirencester, for which borough he continued to sit until his ele- 
vation to the bench. He attached himself warmly to the same 
party in the ranks of which his father had so long combated, and 
although he does not appear to have spoken very often, his vote 
was never wanting to swell the growing minority against Sir 
Robert Walpole. The character of his opposition may be esti- 
mated from the following passages of a speech delivered by him 
against a bill for the impressment of seamen, in 1741 : — " The 
servant by whom I am now attended may be termed, according 
to the determination of the vindicators of this bill, a seafaring 
man, having been once in the West Indies ; and he may there- 
fore be forced from my service, and dragged into a ship, by the 
authority of some justice of the peace, perhaps of some aban- 
doned prostitute, dignified with a commission only to influence 
elections, and awe those whom excise and riot acts cannot sub- 
due. I think it. Sir, not improper to declare, that I would by 
force oppose the execution of a law like this ; that I would bar 
my doors, and defend them; that I would call my neighbours to 
my assistance ; and treat those who should attempt to enter 
without ray consent, as thieves, ruffians, and murderers." 

On the dissolution of Walpole's cabinet, and the accession of 
the Pelhams to power, in the following year, Mr. Bathurst voted 
for some years with the government, under which his father 
held for a short period the office of Captain of the Band of Gen- 
tlemen Pensioners. But in the year 1745 he was appointed 
Solicitor-General (he became in 1748 Attorney-General) to Fre- 
derick, Prince of Wales, then at the very height of his dissen- 
sions with his father, and, as in duty bound, found no difficulty in 
again severing his connexions with the court, and passing through 
the neutral region of a cold and distrustful respect, to an hostility 
as unmitigated as that which he had opposed to the former 
ministry. In a speech against the address of thanks, at the open- 



364 ^ LORD BATHURST. 

ing of the session of 1751, an almost personal attack upon the 
King shows pretty plainly what strain of opposition he deemed 
most likely to recommend him to the Prince : — " I wish the 
gentlemen who support this address had given us a definition of 
what they call servility, for I have always taken flattery to be 
servility, or I think it must be deemed so by all those who allow 
that there can be any such thing as servility in* words or lan- 
guage. Now if there be no flattery in this address, I am sure 
there was never any such thing in words ; for we not only make 
high encomiums without knowing whether they be true or false, 
but we express those encomiums in as high a style as our lan- 
guage will admit of; for which I appeal to almost every sen- 
tence in the address proposed. We must not express our 
acknowledgments to his Majesty, without calling them our 
warmest acknowledgments ; we must not talk of his Majesty's 
endeavours without calling them his unwearied endeavours. 
Thus I could go on, Sir, with my remarks through the whole of 
this address ; and all this, without knowing any thing of the 
facts we thus so highly extol. How a minister might receive 
such high-flown compliments without knowledge, or how this 
House may think proper to express itself upon the occasion, I 
do not know ; but I should be ashamed to express myself in 
such a manner to my Sovereign ; nay, I should be afraid lest he 
should order me out of his presence, for attempting to put such 
gross flattery upon him." Such sentiments as these contrast 
amusingly enough with the purity and independence which we 
shall see him by and by asserting for the measures and opinions 
of the cabinet in which he found a seat, and the factious and cor- 
rupt motives in which he then discovered all parliamentary 
opposition to be founded. 

The unlooked-for death of the Prince, in the same year, scat- 
tered at once all the hopes of the faction of Leicester-house. The 
" rising sun" was prematurely set, and the hands of the govern-' 
ment were so efl'ectually strengthened by the dissolution of his 
party, as to leave those who built their prospects on political 
advancement, much too distant a hope of success by a perse- 
verance in opposition. Mr. Bathurst, accordingly, was not long 
found in the camp of the anti-ministerial forces. Little more than 
two years afterwards, he was so far from occupying a position 



LORD BATHURST. 365 

adverse to the government, as to be selected, on the recommen- 
dation of Lord Hardwicke, to fill a vacant place on the bench of 
the Common Pleas, where he took his seat on the 6lh of May, 
1754 ; his colleagues beingLord Chief Justice Willes, Mr. Justice 
Ciive, and Mr. Justice Noel. This quiet and uneventful post he 
occupied for the period of seventeen years. 

The Court of Common Pleas, from the limited nature of its 
jurisdiction, and the still more limited extent of its business, 
could seldom, if ever, be the scene of forensic contest of that 
general and stirring interest, of v^^hich the criminal judicature 
of the King's Bench made that Court at times the theatre, and 
which, on even more solemn and national occasions, has 
awakened the echoes of Westminster Hall, or thronged the gal- 
leries of the. House of Lords. During the period, however, in 
which Mr. Justice Bathurst sat there, the trials and discussions 
arising out of the government crusade against Wilkes and his 
North Briton, which the popular opinions of Lord Camden had 
attracted to his court, animated for a time its dull and stilly 
atmosphere, and choked its narrow space with the multitudes 
who crowded to swell the triumph of that notable patriot, Mr. 
Justice Bathurst concurred in opinion with Lord Camden, both 
on the right of the Commons to privilege from arrest for libel, 
and in refusing new trials to the defendants who complained of 
excessive damages, in the actions brouorht as^ainst them for 
seizures under the Secretary of State's warrants. Very ^ew of 
the other reported cases on which he had to adjudicate were of 
any other than merely legal interest. \n one instance, and that 
a ludicrous one enough, the court were equally divided in opi- 
nion* — the question being whether a surgeon and apothecary, 
not qualified by estate or degree to destroy partridges, was an 
"inferior tradesman" within the meaning of the aristocratical 
statute of William and Mary, which subjects to full costs in tres- 
pass, such " dissolute persons" as, " neglecting their employ- 
ments," should go forth in quest of game. Mr. Justice Baihurst 
delivered his opinion that " the legislature could never intend to 
permit every master of every little mechanic trade to neglect his 
trade and go a-hunting :" and that the only line that could pos- 

* Buxton v. Mingay, 2 Wils. 70. 



366 LORD BATHURST. 

sibly be drawn between inferior and superior, was that every 
tradesman was inferior who was not qualified : and he was in- 
clined to think the Parliament penned the act so obscurely, in 
order not to disoblige their constituents, many of whom were 
tradesmen ! — that we might venture to ascribe the same con- 
siderate motives to the legislators of our days ! This weighty 
matter was three or four times argued. In another case, Turner 
V. Vaughan, (2 Wils. 339,) in which it was held that a bond in 
consideration of past cohabitation was good in law, Mr. Justice 
Bathurst enriched his judgment by quotations from the books of 
Exodus and Deuteronomy, and thence arrived at the conclusion, 
that '■^wherever it appears that the man is the seducer, the bond 
is good." We wonder when a case will occur in which the 
question of the validity of the bond, the woman being the 
seducer, shall be solemnly adjudged and reported. 

In January 1770, on the dismissal of Lord Camden from the 
Chancellorship, and the unhappy death of Lord Morden (Charles 
Yorke), the seals were put in commission, Mr. Baron Smythe 
(afterwards Chief Baron), Mr. Justice Bathurst, and Mr. Jus- 
tice Aston, being the Commissioners. Their decrees, in the 
more important cases at least, were believed to be drawn up for 
them by Lord Mansfield ; in particular that in the case of Tot- 
hill V. Pitt, (Dickens, 431,) wherein, reversing the judgment of 
the Master of the Rolls, Sir Thomas Sewell, they held the de- 
vise in the will of Sir Thomas Pynsent, under which Lord 
Chatham claimed the Burton Pynsent estate, invalid by reason 
of a prior devise of it in the will of the former proprietor, which 
his Honour had adjudged void as tending to a perpetuity. This 
judgment gave so much dissatisfaction to the profession, that on 
an appeal to the House of Lords, the case, at the suggestion of 
Lord Mansfield, was submitted to the opinion of the other 
judges, and upon their answer the decree of the commissioners 
was reversed. They retained the seals until the month of 
January in the following year (1771), when they were delivered 
to Mr. Justice Bathurst, with the dignity of Lord Chancellor, 
and he was raised to the peerage by the title of Lord Apsley, 
Baron of Apsley, in the county of Sussex. The appointment 
excited no small amount of surprise in the profession. Sir 
Fletcher Norton observed upon it, " that what the three could 



LORD BATHDRST. 367 

not do, was given to the most incapable of the three." The 
malicious muse of Sir Charles Hanbury Williams numbers him 
in the Tory band who 

" Were carsed and stigmatised by power, 
And raised to be exposedJ^ 

The writer whom we quoted in the outset is equally compli- 
mentary : — " He travelled all the stages of the law with a 
rapidity that great power and interest can alone in the same de- 
gree accelerate. His professional career, in his several official 
situations, was never prominently auspicious, till that wonderful 
day when he leaped at once into the foremost seat of the law. 
Every individual member of the profession stood amazed ; but 
Time, the great reconciler of strange events, conciliated matters 
even here. It was seen that the noble earl was called upon from 
high authority, to fill an important office, which no other could 
be conveniently found to occupy. Lord Camden had retired, 
without any abatement of rooted disgust, far beyond the reach 
of persuasion to remove. The great Charles Yorke, the un- 
happy victim of an unworldly sensibility, had just resigned the 
seals and an inestimable life together. Where could the eye of 
administration be directed ? The rage of party ran in torrents of 
fire. The then Attorney and Solicitor-General were at the mo- 
ment thought ineligible, — perhaps the noble lord then at the 
head of aflfairs, who was yet untried, had a policy in not for- 
warding transcendent ability to obscure his own. Every such 
apprehension vanished upon the present appointment. This 
man could raise no sensation of envy as a rival, or fear as an 
enemy." 

His judicial incompetency was indeed unfortunately loo 
obvious. Sir Alexander Macdonald begins one of his conversa- 
tions with Dr. Johnson, on his visit to London in 1772, with a 
remark, suggested, we presume, by a recent visit to Lincoln's 
Inn Hall, "that the Chancellors in England are chosen from 
views much inferior to the office, being chosen from temporary 
political views;" a state of things, according to the Doctor, in- 
separable from all but a pure despotism. Wilkes, according to 
Horace Walpole, stated his opinion of the Chancellor's qualifi- 
cations extremely apropos. It was hinted to him, on his elec- 



368 LORD BATHURST. 

tion to the mayoralty, that iiis Lordship intended to signify to 
hind tliat the King did not approve the city's choice. He replied, 
" Then I shall signify to his Lordship, that I am at least as fitlo 
be Lord Mayor as he to be Lord Chancellor." " This," continues 
Walpole, " being more gospel than everything Mr. Wilkes says, 
the formal approbation was given." To preside with efficient 
control and entire self-dependence in a court wherein the massive 
intellect of Thurlow and the acute sophistry of Wedderburn 
were daily in the lists of contest, would indeed have exercised all 
the learning and all the mental powers of a Hardwicke or an 
Eldon. Well, therefore, might it be said of Lord Bathurst, a 
lawyer indeed of fair attainments, but imperfectly conversant 
with equity principles and practice, and not endowed with any 
vigour of intellect which could enable him to apprehend them, 
as we have seen achieved in our day by the intuitive facility of 
a Lyndhurst, — that he never entered the Court of Chancery 
with a firm and dauntless step. On several occasions, we find 
him applying to the registrar (Mr. Dickens, the reporter of the 
cases in Chancery for many years), not merely for oral in- 
formation on matters of practice, but for formal written opinions 
and abstracts of the authorities, which he delivered to the bar as 
his judgments. Having called in the Master of the Rolls, Sir 
Thomas Sewell, to his assistance in a case of some importance, 
— and after the statement of his Honour's opinion, — " I ought to 
apologize," says the superior judge, "for keeping the matter so 
long before the Court : at first I difl^ered in opinion with his 
Honour, but he hath now convinced me, and I entirely concede 
to his Honour's opinion, and am first to thank him for the great 
trouble he hath taken on the occasion." 

Such was the learned lord in the Court of Chancery. In the 
House of Lords, he appeared as the unshrinking advocate of 
those unhappy councils which ended in the dismemberment of 
our colonial empire. " What !" said he, in the debate on the 
reception of General Gates's letter — " What ! acknowledge the 
independency of America, and withdraw our army and our fleet! 
Confess the superiority of America, and wait her mercy ! He 
desired the House to consult their own feelings for an answer." 
Alas ! that answer the stern necessity of repeated humiliations 
too speedily supplied ! The Chancellor appears to have figured 



LORD BATHURST. 369 

as the chief vindicator of the purity of Lord North's cabinet, and 
the independence of his partisans. When Lord Effingham, in 
the debate on his motion relative to the state of the navy, in 
1778, remarked that " the first Lord of the Adrairahy knew his 
strength in a division ; he would go below the bar, and take with 
him his — he had like to have said, servile majority," the Lord 
Chancellor left the woolsack in great warmth, and asked, were 
their lordships to be so grossly insulted without a rebuke? 
" He had sat in that House seven years, and never before heard 
so indecent a charge. A servile majority ! The insinuation was 
not warrantable. He had for one voted in favour of the mea- 
sures of government ; but would any lord venture to say he was 
under influence ? The ministers knew his place was no tie upon 
him ; they knew he always gave his vote freely, and according 
to his real opinion. He was born the heir of a seat in that 
assembly ; he enjoyed a peerage as his hereditary right. He 
could not therefore sit still and hear the noble earl talk of a ser- 
vile majority, and he was amazed that government had so 
long suflTered themselves to be abused ; he hoped they would no 
longer be patient under such a continued strain of invective, but 
would take the proper means to prevent it in future." His 
Lordship was perhaps right in ascribing more weight to the dig- 
nity he derived from an hereditary source, than that which he 
owed to his professional advancement. On a subsequent occa- 
sion, when again magnifying his own political purity, and at- 
tacking the motives and principles of the opposition, he was 
somewhat unpalatably reminded of his own anti-ministerial 
career. *' He had for a long series of years," he said, "served 
his sovereign in several capacities, and he could lay his hand on 
his heart, and with truth affirm tliat he had always acted for the 
good of his country, to the best of his abilities, and that there 
was nothing the crown had to bestow wliich could induce him 
to give a vote contrary to his conscience, or declare against what 
seemed to him to be the real interest of his country. If he was 
not very opulent, he had sufficient to put him above the poor 
temptations of place and emolument," — with much more to the 
like eff'ect. The conduct of the opposition arose, he alleged, 
"from a wicked ambition; a lust of power and dominion; a 
thirst after the emoluments of office. It sprung from corruption, 



370 LORD BATHURST. 

and the worst species of corruption, because it was incurable — a 
corruption of the heart." 'J'he Duke of Richmond observed 
upon this estimate of the motives of a parliamentary opposition, 
" that he was ready to take his Lordship's word for every syl- 
lable of the doctrine, so far as it applied to himself. There was 
a period, and a long and perhaps the most valuable period of his 
Lordship's life, when he was known to be in strong opposition 
to the measures of the court. His Lordship, it might be fairly 
presumed, now spoke as he once felt; he spoke from long expe- 
rience. No man was a better judge of the various operations of 
the human mind under such circumstances, and so far as he re- 
tained a recollection of what passed in his own, it was scarcely 
to be doubted, it was fair to conclude, that a wicked, corroding 
ambition, whetted and increased by unavailing attempts, and a 
state of political despair, were, in his Lordship's contemplation, 
ever productive of malice and personal enmity, and that worst 
species of corruption, a corrupt heart." 

" Quis tulerit Gracchos de seditione querentes "!" 

Lord Bathurst (he succeeded to the earldom, and to the barony 
of Bathurst, on his father's death in 1775,) appears to have 
taken little part in the actual business of legislation. He had a 
chief hand in the framing of the Royal Marriage Act, the pro- 
visions of which he defended with a chivalry that none but its 
parent could have exhibited. " He should be unworthy of the 
situation he was in, if he could not defend every clause, every 
sentence, every word, every syllable, and every letter in it. He 
would not consent to any amendment whatever : it could not be 
mended. If any inconveniences arose, parliament would remedy 
them a hundred years hence : all power might be abused, but it 
was better to risk that than not to give this power — the king 
could not make a bad use of it, because parliament would 
punish the minister who advised the king ill.^^ 

The only case of peculiar interest which came by appeal into 
the House of Lords while he occupied the woolsack, was that 
of Donaldson v. Beckett, in which the question as to the right 
of literary property was so fully and learnedly discussed. The 
Chancellor concurred in the opinion of the majority of the 
judges, that neither by the common law, nor under the statute 



LORD BATHURST. 371 

of Anne, could any exclusive right be sustained. He went at 
jBuch length into the legal bearings of the case, and gave an 
interesting historical detail, illustrated by original letters, of the 
proceedings in both Houses during the passing of the statute, all 
tending to show that the sense of the legislature, at that period, 
was against the right: but he wisely abstained from debating the 
doubtful ground of public policy, or, like Lord Camden, over- 
laying his legal conclusions with rhetorical declamations on the 
meanness of writing for bread, and the superiority of glory as 
the reward of literary labour. His father, who had been \fn- 
ness to the " acquisitiveness" of Pope, and had himself been the 
depositary of poor Gay's litde savings, could have assured him 
that such a doctrine found, at all events, small acceptance in 
their day. 

Lord Bathurst does not appear to have inherited much of his 
father's fondness for the society of literary men, or to have 
extended to them a very liberal patronage. He bestowed, how- 
ever, unsolicited, a commissionership of bankruptcy on Sir 
William (then Mr.) Jones, and intended, had he retained the 
seals long enough, to have appointed him, notwithstanding the 
extreme character (as it was then deemed) of his political opi- 
nions, to an Indian judgeship), the great object of his hopes, 
which he subsequently obtained at the hands of the Coalition 
Ministry. Mr. Jones acknowledged his patronage in the most 
glowing terms of gratitude in the Dedication of his Iseeus. 
" Your Lordship," he said, " has been my greatest, my only 
benefactor; without any solicitation, or any request on my part, 
you gave me a substantial and permanent token of regard, M'hich 
you rendered still more valuable by your obliging manner of 
giving it, and which has been literally the sole fruit that I have 
gathered from an incessant course of very painful toil ; your 
kind intentions extended to a larger field ; and you had even 
determined to reward me in a manner the most agreeable both 
to my inclinations and to the nature of my studies, if an event, 
which, as it procured an accession to your happiness, could not 
but conduce to mine, had not prevented the full effects of your 
kindness." 

The Chancellor incurred considerable observation and censure 
by conferring a chaplaincy on Martin Madan, the translator of 



372 LORD BATHURST. 

Juvenal, whose heterodox opinions and indifferent morals were 
then tolerably notorious, and who afterwards gave such serious 
offence to the church by the publication of liis Thelyphthora — 
a defence, hardly disguised, of the practice, or at least the doc- 
trine, of polygamy. His liordship's ecclesiastical patronage 
was, on one occasion, solicited in a manner of which it is just 
to say that it exhibited only the unequalled assurance of the 
applicant, and implies no reproach whatever against the honour 
or integrity of the patron. On the living of St. George's, 
Hanover Square, falling vacant. Lady Apsley received an anony- 
mous letter, offering a sum of three thousand guineas, if by her 
assistance the writer were presented to it. The letter was traced 
to the unhappy profligate Dodd, and led to -his dismissal with 
disgrace from the office of king's chaplain. 

In the summer of 1778, Lord Bathurst, finding his health 
unequal to the labours of his office, resigned the great seal ; and, 
as it is stated in his Biographia, declined to receive a pension 
offered to him on his retirement: although he is affirmed to 
have been a man of parsimonious habits. In November of the 
following year, however, he was appointed to the dignified 
office of President of the Council, which he retained until the 
breaking up of Lord North's administration. The last occasion 
on which he distinguished himself as a speaker, before his 
resignation of office, was in vehement opposition to the bill for 
securing an annuity to the family of Lord Chatham, who, he 
contended, had been amply repaid for all his services by the 
pension he enjoyed during his life, and his appointment to the 
privy seal. The Chancellor found himself, on this occasion, 
leader of a generous minority of eleven, and consoled himself 
under his defeat by recording in a protest his dissent from a mea- 
sure whicli, he apprehended, " might in after times be made use 
of as a precedent for factious purposes, and to the enriching of 
private families at the public expense ;" a profession of honour- 
able economy to which three signatures besides his own were 
subscribed. He continued to be a frequent speaker in Parlia- 
ment, and a strenuous opponent of all the attempts to persuade 
to the conciliation of America. On several occasions we find 
him and Lord Thurlow, who seems to have entertained an une- 
quivocal dislike for him, in almost direct collision of opinion. 



LORD BATHURST. 373 

though members of the same cabinet. After his final retirement 
from office, he still continued for some years a regular attendant 
in his place in Parliament, but at length, and for some years 
before his death, was compelled by the advance of age and the 
decline of health to withdraw altogether from political life. He 
died at his seat of Oakley Grove, on the 6th of August, 1794, 
in" his eighty-sixth year. 

The mansion of Apsley House, now the seat of so much 
more illustrious an occupant, was built by Lord Bathurst. As 
soon as it was completed, he was saluted with the agreeable 
intelligence that he had encroached upon a plot of ground 
granted by the crown to a veteran soldier, whose widow threat- 
ened him with a suit in Chancery. Having bought off her 
claims at the price of a considerable sum of money, it became 
a standing joke in Lincoln's Lin Hall (a joke with a double 
aspect), that an old woman could beat the Chancellor in his 
own Court. 

Lord Bathurst was twice married ; first to Anne, only child of 
a gentleman named James, and widow of Charles Philips, Esq., 
who died without children ; secondly, to Tryphena, daughter of 
Thomas Scawen, Esq., of Carshalton, in Surrey, by whom he 
had two sons and four daughters ; the eldest of whom, the 
late noble earl, died in the year 1835, having filled, during a 
large portion of his life, many and distinguished offices in the 
service of the Crown. 



LOUD MANSFIELD, 



The name of Murray, which must be familiar to every one 
in the least acquainted with the history of Scotland, is generally 
admitted to be among the most ancient of that country. Tradi- 
tion derives it from the Moravii, a warlike people of Germany, 
of whom a colony is said to have settled at a very early period 
in that part of the kingdom since known by the appellation of 
Murrayshire. But without going so far back for its origin, or 
resting its antiquity on equivocal testimony, it can be proved by 
authentic records, that Friskinus de Moravia, who is usually 
looked upon as the immediate founder of the family of Murray, 
was a wealthy and powerful noble of Scotland so far back as 
the beginning of the twelfth century. By a royal charter, dated 
1284, Sir William de Moravia, or Murray, one of the lineal 
representatives of Friskinus, was confirmed in the possession of 
the estates of Tullibardine, which he had obtained in conse- 
quence of a marriage with the daughter of Malise, seneschal of 
Strathearn. In the reign of James VI., Sir John Murray, 
twelfth baron of Tullibardine, was raised to the peerage, by 
letters patent, dated April 25, 1604 ; and in little more than two 
years afterwards (July 10, 1606) was created Earl of Tullibar- 
dine. This title is now annexed to the Dukedom of Athol. 
The peerage of Scotland also counts among its titles those of 
Dunmore, Stormont, and Elibank, all belonging to the name of 
Murray, and all deriving their origin from the same source. 

Sir Andrew Murray of Argonsk, who was a younger son of 
Sir William Murray, eighth baron of Tullibardine, maybe con- 
sidered the founder of the Stormont branch of the family. By 
his second wife, Lady Janet Graham, daughter of the Earl of 
Montrose, he had three sons, of whom the second, David, dur- 
ing the reign of James VI., was successively appointed to the 



LORD MANSFIELD. 375 

offices of master of the horse, captain of the guard, and comp- 
troller of the royal revenue. Being in attendance on the king 
at the time when his life was threatened with imminent danger 
by the Earl Cowrie's conspiracy, he had an opportunity of 
doing good service to his majesty, by contributing to provide for 
the safety of his person, and particularly by quelling the insur- 
rection that broke out in the town of Perth, soon after the intel- 
ligence of Gowrie's death became public. The activity and 
zeal displayed by him on this occasion procured him a consider- 
able share of the Earl's possessions, which became forfeited to 
the crown in consequence of his treason. The king conferred 
on him the barony of Ruthven, and the abbacy of Scone, which 
last, having a short time before been erected into a temporal lord- 
ship for the family of Gowrie, empowered the new possessor to 
assume the title of Lord Scone. The ancient abbey and the 
adjoining royal palace of Scone, from time immemorial the 
crowning place of the kings of Scotland, have been so entirely 
destroyed by the religious fanatics of the Reformation, that the 
exact site on which they stood is now uncertain ; though it is 
generally supposed that the present castle is built nearly on the 
same spot, a beautiful and romantic situation on the banks of the 
Tay, about a mile and a half to the north of Perth. This edifice 
was begun by Earl Gowrie, and finished by his successor. Sir 
David Murray, whose memory is perpetuated there by a fine 
marble monument erected over his tomb in the adjoining church, 
representing him as large as life, in a kneeling posture, and in 
complete armour. By letters patent, dated August 16, 1621, he 
was created Viscount Stormont. The lineal succession to this 
tide has since met with no interruption. The fifth viscount 
married the only daughter of David Scot of Scotstarvet, who 
was the heir male of the family of Buccleugh, and by her he 
had fourteen children. Of these the fourth, William, has given 
more lasting celebrity to the name of Murray, than had been 
conferred on it by the valour and the wisdom of the many illus- 
trious warriors and statesmen whose deeds had previously ren- 
dered it so honourably conspicuous in the annals of their country. 
His life will form the subject of the following pages. 

The Honourable William Murray, at present better known 
by the title of Lord Mansfield, was born on the second of March, 



376 LORD MANSFIELD. 

1704, ill the palace or castle of Scone. A mistake in the entry 
of his name in the books of Christ Church College, Oxford, for 
some time gave credit to the supposition that the town of Bath 
could claim the honour of giving him birth. But this can be 
contradicted on his own authority. The circumstance was one 
day mentioned to him by Sir William Blackstone ; and he then 
accounted for the error, by presuming either tliat the document 
transcribed into the college books must have been so illegibly 
written as to cause the word Perth to be mistaken for Bath, or 
that the broad Scotch pronunciation of the bearer, if he was 
referred to for an explanation of it, might have given rise to a 
similar confusion of the two names. 

The country of his birth had no share in the cultivation of his 
genius ; for he was removed to England when not more than 
three years of age, and there received the whole of his education. 
Some portion of his early youth was passed at the grammar 
school of Lichfield ; and it is a remarkable fact, that at a later 
period, when he filled the station of Chief Justice of England, 
there were no less than seven judges on the bench, besides him- 
self, who had been partly educated at the same seminary, 
namely, Lord Chancellor Northington ; Sir Thomas Clarke, 
Master of the Rolls; Willes, Chief Justice of the Common 
Pleas; Chief Baron Parker; Sir John Wilmot, then a puisne 
judge of the King's Bench, and afterwards Chief Justice of the 
Common Pleas ; Mr. Justice Noel ; and Sir Richard Lloyd, a 
Baron of the Exchequer. The celebrity of the school was after- 
wards still further increased by the fame of Johnson and Garrick, 
who were both brought up there. Young Murray did not remain 
sufficiently long at Lichfield to obtain in it more than the rudi- 
ments of classical learning, being admitted a king's scholar at 
Westminster at the age of fourteen. Fortunately the school 
had never been in a more flourishing condition than at the 
period when he entered it. The number of the boys amounted 
to five hundred ; and besides the advantage of having for their 
daily instructors two such eminent scholars as Doctors Friend 
and Nicholl, they were examined at elections by Bishop 
Atterbury, who attended in his capacity of Dean of Westminster, 
Bishop Smalridge, as Dean of Christchurch, and Bentley, as 
master of Trinity College, Cambridge. "As iron sharpeneth 



LORD MANSFIELD. 377 

iron," says a distinguished school-fellow of Murray, " so these 
three, by their wit and learning and liberal conversation, whetted 
and sharpened one another." The learned rivalry of such men 
could hardly fail to excite a corresponding emulation among the 
young scholars who were in the habit of witnessing it ; and in 
the constant competition of talent to which this excitement must 
have given an additional stimulus, none shone more conspicuous 
than Murray. It is particularly recorded of him, that his supe- 
riority was more manifest in the declamations than in any of the 
other exercises prescribed by the regulations of the school ; a 
fact not to be overlooked in the history of one who afterwards, 
as an orator, equalled if not excelled such competitors as it falls 
to the lot of ^ew nations or ages to possess. His proficiency in 
classical attainments was almost equally great ; insomuch that 
at the election in May, 1723, when he had been five years a 
member of the school, he stood first on the list of candidates for 
Oxford, where he accordingly entered as king's scholar in the 
following June. 

During his residence at Christ Church, Murray did not dis- 
appoint the expectations which had been formed at Westminster 
with respect to his success in the university. Here he was of 
course less controlled than he had been at school in the direction 
of his studies ; and the bent of his taste, as well as of his ambi- 
tion, led him to devote a considerable portion of his time to that 
of oratory. As he spared no pains to attain excellence in his 
favourite pursuit, he not only took care to exercise himself fre- 
quently in composition (the surest method of forming a ready 
speaker), but he was not deterred by the apparent drudgery of 
the task, from following a plan recommended by all the most 
eminent professors of the art, and one which gives those who 
adopt it the double advantage of familiarizing themselves at the 
same time with the practice of composition, and the language of 
classical literature ; namely, that of translating the master-pieces 
of ancient oratory, and then retranslating the version into the 
original tongue. He has often been heard to declare, that while at 
Christ Church he put this method in practice with most of the 
orations of Cicero. These circumstances are important in a 
double point of view ; both inasmuch as they are a proof of the 
assiduity and industry of the individual, and as they tend (so far 

25 



378 LORD MANSFIELD. 

at least as one very eminent instance can do so) to discredit the 
very common, but not the less very fallacious doctrine, accord- 
ing to which eloquence is considered as a natural gift, incapable 
of being cultivated or improved to any considerable extent by 
study and practice. This is a notion particularly likely to find 
favour with such as do not distinguish mere fluency of speech, 
or the capability of stringing words together with rapidity and 
facility (than which there scarcely exists a more mean and un- 
enviable faculty, nor one more frequently allied with very small 
talent), from real eloquence, the noblest effort of human intellect. 
That Murray, even at this early period, had reflected much 
and deeply on the principles of the art in which he was thus 
earnestly endeavouring to perfect himself, is suflficienfly proved 
by the fragment of a Latin discourse, written by him while at 
the University. It is a critical examination of the speech of 
Demosthenes for the Crown ; and is very evidently the work 
of one accustomed to calculate by what means a particular eflfect 
is most likely to be produced on the passions or the understand- 
ings of a mixed assembly of people. The artful mode in which 
the orator contrives in the outset to secure the favourable atten- 
tion of his auditory, calls forth the admiration of the young critic ; 
and he beautifully compares the insinuating eloquence of Demos- 
thenes, insensibly assuaging the passions aroused by his rival's 
peroration, to a silent shower of dew gently falling on a parched 
herbage. " Quis flexanimam Demosthenis potentiam digne ex- 
plicaverit, quae submisso placidoqueprincipio in animos omnium, 
velut in accensos agros taciturno roris imbre leniter influenles, 
incendium quod reliquerit iEschines extinguit, populique furorem 
placat ?" The rising energy of the speaker, and the effect pro- 
duced by it on his hearers, is commented on with great judg- 
ment as well as beauty of language. But what he especially 
applauds is the dexterity of Demosthenes, in keeping himself as 
it were concealed, and exciting the feelings it is his object to 
awaken, without appearing to make any effort for that purpose. 
It is particularly w^orthy of notice, that the eloquence of Murray 
himself was afterwards chiefly remarkable for that consummate 
perfection of art which conceals all appearances of art, and excites 
no suspicion of design. He tells us of Demosthenes, "Omnem 
artificii suspicionem tollit, et in narrationibus non advocati slu- 



LORD MANSFIELD. 379 

dium sed testis fidem, in argumentis non rei excusationem sed 
judicis auctoritatem habet." This eulogium is equally applica- 
ble to himself, and is indeed in substance nothing but what has 
been said of him by a great master, that his statement of a case 
was alone worth an argument. 

Though oratory was undoubtedly the favourite study of Mur- 
ray, he was by no means inattentive to the other branches of 
learning cultivated in the University. The discourse just men- 
tioned would be an ample proof, were there no others, of his 
classical scholarship, and especially of his complete mastery over 
the language in which it is written. He also distinguished him- 
self, though in a less degree, by his attempts at poetry ; and it 
is probably in allusion to his success in these two pursuits, as 
well as in the study of classical literature, that the portrait of 
him painted for Christ Church, by Martin (1776), represents 
him with a volume of Cicero in his hand, and a bust of Homer 
placed on the table before him. A copy of Latin verses has 
been preserved, written by him after he had taken his bachelor's 
degree. They certainly do not exhibit any extraordinary degree 
of poetical merit ; but they are at least equal to the common 
average of academic exercises, and show their author to have 
been familiar with the practice of Latin versification. The sub- 
ject is the death of George the First ; and tlie prize which had 
been proposed for the best composition on that occasion was 
awarded to Murray. Pitt, then a gentleman commoner of Trinity, 
was one of the disappointed competitors ; and this was in all 
probability the first instance of the rivalry between these two 
celebrated men, who were afterwards for many years the leaders 
of two contending parties, in a much more brilliant and more 
arduous species of strife. 

In April, 1724, Murray had become a member of Lincoln's 
Inn, and in Michaelmas term, 1730, having previously graduated 
as Master of Arts (24th of June, 1730), and passed a short time 
on the continent, he was called to the bar. In what manner he 
had qualified himself for the duties of the profession he was now 
about to enter upon, we have but very imperfect means even of 
conjecturing. This is the more to be regretted, as a full account 
of his initiation into the science, of which he afterwards became 
so able an expounder, would derive a peculiar interest from the 



380 LORD MANSFIELD. 

circumstance of his having, unhke the majority, depended 
almost entirely on his own resources for instruction ; since it is 
known that, although he no doubt readily availed himself of the 
occasional advice and assistance of such of his seniors as chance 
gave him access to, he never professedly became the pupil of any 
particular practitioner. During his noviciate, he was in the 
habit of attending a debating society, the discussions of which 
were exclusively confined to legal subjects ; and his arguments 
were prepared with so much care as to be frequently serviceable 
to him in after-life, not only when at the bar, but when he pre- 
sided in the Court of King's Bench. This is almost all that can 
be stated with positive certainty of his early studies. However, 
in the absence of information as to the course of reading he him- 
self adopted, which might possibly be thought to want in autho- 
rity quite as much weight as it would have in point of example, 
we are fortunately supplied by his own hand with advice as to 
some part of the course which his maturer experience recom- 
mended for others to follow. It is by no means improbable, that 
the very plan by which he himself had been guided in his read- 
ing was, in substance and in all essential particulars, the same 
he afterwards proposed as the most eligible. If so, it comes to 
us doubly recommended. 

The first preparation suggested for the study of the law is a 
general course of historical reading ; and two letters of Murray's 
on the subject of foreign, and particularly French history, writ- 
ten at the request of the Duke of Portland, afford very good evi- 
dence that he himself abided so far by the directions he after- 
wards laid down. This necessary information being obtained, 
the legal student is recommended to gain a general insight into 
the science of ethics, which, as Murray justly observes, is the 
foundation of all law. From ethics the next step is to the law 
of nations, which he correctly describes as being pardy founded 
on the law of nature, and partly positive. When this foundation 
is laid, it will be time, he says, to look into systems of positive 
law; and he mentions it as a thing of course, that the Roman 
laws will be the first to claim attention. It will afterwards be 
necessary to obtain a general idea of the feudal system, for which 
purpose Craig " De Feudis" is proposed as "an admirable book 
for matter and method." " Dip occasionally," he concludes, 



LORD MANSFIELD. 381 

"into the Corpus Juris Feudalis, while you are reading Gian- 
none's History of Naples, one of the ablest and most instructive 
books that ever was written. These writers are not sufficient 
to give you a thorough knowledge of the subjects they treat of; 
but they will give you general notions, general leading principles, 
and lay the best foundation that can be laid for the study of any 
municipal law, such as the law of England, Scotland, France, 
&c." 

Some objections may perhaps be made to the details with 
which the outline of this comprehensive plan of study has been 
filled up. The list of authors recommended might no doubt be 
both amended and enlarged with advantage ; as for instance, in 
the case of ethics, for which the only works mentioned are 
Xenophon's Memorabilia, Cicero De Officiis, and Wollaston's 
Religion of Nature, with Aristotle's Treatise, for occasional re- 
ference ; and still further in that of civil law, which comprises 
merely Gravina and the Institutes of Justinian, with the short 
commentary of Vinnius ; the Digest to be consulted only from 
time to time. But the substance of the plan itself appears to 
us unexceptionable. It may probably be urged, that such a 
course of purely preparatory study would demand a space of 
time which might be more advantageously devoted to a direct 
and immediate pursuit of the object in view, namely, a know- 
ledge of the English law. But this objection is upon the whole 
more specious than solid; and is indeed founded on a principle 
which we conceive to be altogether erroneous. The task which 
the student has to accomplish is admitted on all hands to be an 
arduous one ; the goal is distant, and it is therefore commonly 
presumed that he who soonest starts forward on the road has a 
much better prospect of reaching it, than those who delay their 
departure in making preparations for the journey. This notion 
does not prevail, nor is it ever acted upon, in the real business of 
life. If a real voyage be contemplated, instead of the figurative 
one to which we have just compared the study of the law, no 
one thinks of grudging either the time or the trouble bestowed 
in making provision to encounter the length and the difficulties- 
of it ; because common foresight and every-day experience 
abundantly prove, that it is only by taking such necessary pre- 
cautions that it can be performed with safety or expedition. 



382 LORD MANSFIELD. 

The lengtli of time, and the degree of care, given to the task 
of making preparation, are proportioned to the length and the 
difficulties of the proposed expedition. We see no valid reason 
why the mind should not in like manner be forearmed against the 
difficulties of a toilsome and arduous course of study ; nor why 
the lime and the trouble bestowed in so preparing it should be 
considered mis-spent. Indeed, we are acquainted with no more 
striking exemplification of the very just, though apparently 
paradoxical, adage, that the most direct way may turn out to be 
the longest in the end, and most haste prove worse speed, than 
the precipitation with which it is too common to plunge at once, 
and without previous preparation, into the intricacies of the 
study of the law. 

The advantage to be derived from imbuing the mind with a 
sufficient store of principles, before we proceed to load the 
memory with the rules which have been deduced from them, has 
never, to our knowledge, been denied in theory, however litde it 
may be attended to in practice. There is, however, one peculiar 
benefit attendant on this method, which we believe has not suffi- 
ciently often been adverted to ; though for confirmation of it we 
may confidently appeal to all who have called the faculties of 
their minds into active exercise, with reference to any subject 
whatever. This is the extreme facihty with which any par- 
ticular rule, which has been obtained as the conclusion and result 
of a train of reasoning, is preserved in the recollection, or, if 
forgotten for the moment, is recalled at pleasure ; and, on the 
other hand, the extreme difficulty of retaining in the memory a 
mass of isolated and unconnected facts, which we have origi- 
nally taken for granted, and which, having as it were no hold 
upon the brain, we have no mears of recovering when they 
have once escaped. Nor, in enumerating the advantages of a 
plan of study like that recommended by Murray, should the 
facilities it affords in acquiring as well as retaining knowledge be 
left out of the calculation. The different gradations from one 
subject to another, are placed, so to speak, in a descending 
direction. The student gains a lofty eminence in the first in- 
stance, and his whole after progress is made with the ease of a 
traveller journeying down hill. If the study of the law were 
always entered upon in this manner, we should not so com- 



LORD MANSFIELD. 383 

monly hear of its revolting abstruseness, nor should we be able 
to quote so many examples as are now to be found, of men 
neither deficient in talent nor in perseverance, who have pursued 
it with reluctance, or quitted it with disgust. 

Perhaps no one who ever abandoned the profession of the 
law has had stronger temptations to assign as his motive, than 
those which assailed Murray. Accomplished, devoted to litera- 
ture, and, so far as academical distinction can confer celebrity, 
not without some portion of literary fame, it must have required 
a severe exertion of self-command to refrain from following the 
example of the numerous aspirants to renown, who have been 
seduced from the bar by the prospect of acquiring more speedy 
honours and emolument in the world of letters. The character 
of literary men as a class, and their station in society, had never 
been higher than at that very period. The time was still fresh 
in the memory of his contemporaries, when Addison and Prior 
had found their literary celebrity a passport to offices of state. 
Pope had raised himself to independence, and indeed to affluence, 
solely by the exertion of his talents. The eagerness with which 
his acquaintance was courted, and the deference shown to him 
in the highest classes of society, were owing entirely to his 
success as an author. These, and many other instances of a 
similar kind, were, no doubt, a strong inducement to those who 
felt the consciousness of genius, to venture on the same track. 
The manners of that time, too, made the eminent authors par- 
ticularly easy of access; and every one might be a witness to 
the respect invariably paid to them in the public places of resort, 
where they were wont to congregate. Those places of resort 
were moreover almost all in the quarter of the town occupied by 
the members of the legal profession, who then lived in the very 
heart and focus of the literary world. The neighbourhood of the 
inns of court was the chosen head-quarters of men of letters, 
and also, indeed, of men of fashion, who were almost univer- 
sally anxious to cultivate their society. Steele dales all the 
papers of his Tattler, that have reference to literary discussion, 
from either Will's coffee-house or the Grecian ; the former 
being frequented by such as interested themselves chiefly in 
poetry and the lighter departments of the belles letlres, the latter 
by those whose conversation turned principally on subjects of 



384 LORD MANSFIELD. 

classic learning. Will's (as well as Button's, which in Murray's 
time was still more frequented) was in Russell-street, Covent- 
garden, within a few minutes' walk of Lincoln's-inn ; the 
Grecian was and still remains* at the very gate of the Temple. 
Our readers will probably not require to be reminded, that Dick's 
and Serle's, and several other coffee-houses of the same char- 
acter, formed a cluster about the inns of court ; nor that the 
well-known shop of Bernard Lintot, the bookseller, which was 
the constant morning lounge of literary men, was situated be- 
tween the Temple Gates, in Fleet Street. We are not certain 
whether old Jacob Tonson, Dryden's publisher, still remained 
at the Judge's Head in Chancery-Lane, or whether he had then 
vacated this shop in favour of the Shakespeare's Head, over 
against Catherine Street in the Strand. At all events, the head- 
quarters of literature may be said to have had Temple Bar for 
their nucleus. In Lincoln's Inn Fields, too, stood ihe theatre ; 
and a theatre was then a place of amusement of a far higher 
character than it has been of late years. In short, a lawyer of 
that day was surrounded by such temptations as have induced 
many, whose tastes and habits gave them any inclination towards 
literary pursuits, to forsake their profession altogether, and many 
more to follow it so languidly, as to find themselves eventually 
shut out from all prospects of its highest dignities and rewards. 

That Murray withstood these allurements, as well as those of 
the fashionable society to which his birth gave him access, or at 
least made them subservient to his more serious pursuits, is a 
convincing proof that he possessed the energy and determination 
of character, without which nothing great can be achieved. That 
he was ambitious is of itself small praise ; for to conceive lofty 
projects and indulge in brilliant anticipations of fame, is the 
constant occupation of many an idler, who wants the resolution 
to make any effectual attempt towards realizing his visions of 
future greatness ; but that he had perseverance steadily to pursue 
the object of his ambition, shows not only his strength of mind, 
but his consciousness of ability to attain the eminence he as- 
pired to reach ; than which (whatever particular instances may 

* 1830: — it has been since pulled down, and chambers built upon 
its site. 



LORD MANSFIELD. 385 

be adduced as exceptions to the rule) it may safely be affirmed 
there is, in general, no more certain indication of genius. 

However, after giving to Murray the credit which is justly 
his due for remaining constant to his profession, in the midst of 
these inducements to desert it, we must not omit to remark, that 
he was not subjected to that sort of trial, which of all others has 
had the greatest influence in cooling the ardour of aspirants to 
legal honours, and in many instances has caused them prema- 
turely to abandon a profession, that might eventually have raised 
them to wealth and eminence, as great as their most sanguine 
hopes could have anticipated. He had not to contend with 
neglect, nor to struggle against the mortification and discourage- 
ment of unmerited obscurity. In respect, indeed, of an early 
opportunity of displaying his acquirements, he may be said to 
have been unusually fortunate. Within a year and a half after 
his call to the bar, we find him engaged with the Solicitor-Gene- 
ral, Talbot, in an appeal case of importance before the House 
of Lords ; and only a few days afterwards he appeared in the 
same place, as counsel for the Marquis of Annandale. In the 
year following he was retained in three appeals ; and his success 
in this, the most lucrative department of a barrister's practice, 
was so great, that in the years 1739 and 1740, he was counsel 
in no less than thirty ; a much larger number than are usually 
set down for hearing in the course of two consecutive sessions 
of parliament. Previously to this (in 1737) he had received 
from the corporation of Edinburgh the freedom of the city in a 
gold box, for the zeal and ability he had displayed as their ad- 
vocate, before both Houses of Parliament. The occasion of his 
being engaged on their behalf was the proposal of a bill for 
disqualifying the Provost and fining the corporation, on account 
of their remissness in quelling the Porteous riots : their inac- 
tivity being imputed to motives of disafl^ection to the reigning 
monarch. Perhaps the connection of a part of Murray's family 
with the Jacobite parly might be one reason why he was sin- 
gled out for their defender. 

It is to be presumed that he was indebted for his first intro- 
duction to the bar of the House of Lords to the influence of his 
family connections. These were probably of less service to him 
in the Court of Chancery, where he was a constant attendant; 



386 LORD MANSFIELD. 

but the reputation for abilities, both as an orator and a lawyer, 
wliich he shortly acquired, in consequence of the talent displayed 
by his arguments in cases of appeal, could not fail to procure 
him clients elsewhere. It is not always that the names of coun- 
sel engaged are given at all in Atkyns' Reports, and when this 
does happen, the seniors only, on whom the arguing of the cases 
devolved, are mentioned ; besides which, as the work is very 
properly confined to causes of importance, it contains no allusion 
to such business as may be supposed to have brought a rising 
young barrister most frequently before the court. We have, 
therefore, no clue towards forming anything like a correct esti- 
mate of the amount of Murray's practice during this period ; 
but there is every reason to believe that it went on progressively 
increasing in Westminster Hall, with as much rapidity as in the 
House of Lords. It has been said, indeed, that he remained, for 
a long time after his call to the bar, entirely unnoticed ; and that 
he never knew the difference between having no practice at all 
and one that produced him three thousand a year. That this 
account is incorrect may easily be proved by a reference to the 
Lords' Journals : and another story, on which it is partly 
founded, seems to lay very little better claim to credibility. Ac- 
cording to this tale, in the well-known case of Gibber v. Sloper, 
tried (5th September 1738) before Sir W. Lee, Chief Justice of 
the King's Bench, the senior counsel employed on behalf of the 
defendant being suddenly seized with a fit in court, the conduct 
of the defence devolved entirely upon Murray, who was retained 
as junior on the same side ; and the Court consenting to adjourn 
for an hour, in order to give him time for preparation, at the ex- 
piration of that time he delivered a speech, which had such an 
effect on the jury, as speedily to bring the young, and till that 
time unknown orator, an enormous influx of clients. Now it 
is to be remarked, in the first place, that two accounts of the 
trial, published at the time, make no mention of any incident of 
this kind ; though it would have been one not Hkely to be omit- 
ted in books made up for the sole purpose of gratifying the 
curiosity of the public, and containing the most minute detail of 
every thing connected with the proceedings. Even had Serjeant 
Eyre, the leader, been disabled from proceeding with the defence, 
there were three other counsel on the same side, independent of 



LORD MANSFIELD. 387 

Murray, and two of them, Noel and Lloyd, were his seniors ; 
so that it is most improbable the duty would have devolved on 
him. ^ But the fact is, that the Serjeant's speech is reported at 
considerable length, and bears not the slightest mark of his hav- 
ing been stopped short, or even interrupted for a moment, by an 
attack of illness, or any other cause. Murray, it is true, was 
afterwards heard by the Court, but this privilege was probably 
conceded to him from a consciousness of his ability as a speaker, 
which had long been no secret, either to his own profession or 
the public. In short, there seems every reason to believe that 
the whole history of Serjeant Eyre's sudden malady, and Mur- 
ray's almost equally sudden emersion from obscurity into cele- 
brity, owes its origin to that same appetite for the extraordinary, 
by which so many facts of much greater importance are almost 
daily confused and distorted. There is no reason, however, to 
doubt that Murray's reputation was diffused much more widely 
than it had been before, in consequence of the part he bore in 
this trial. Any cause in which the son of Colley Gibber might 
be concerned was not likely to fail in catching the attention of 
the public. His wife, too, (the sister of Thomas Arne the com- 
poser) who was the cause of the action, had long been a favour- 
ite actress, and the whole town had been occupied, some time 
before, with the notable dispute between her and Mrs. Clive, as 
to who should perform the part of Polly Peachum, in the Beg- 
gars' Opera;* so that all the history of her intrigues was sure 

♦ This is alluded to in Fielding's play, *' The Historical Register for 
1736," where Theophilus Gibber, under the name of Pistol, and his 
father by that of Ground-Ivy, are held up to the ridicule of the 
audience. 

" Thus to the publick deign we to appeal ; 
Behold how humbly the great Pistol kneels. 
Say then, O Town, is it your royal will. 
That my great consort represent the part 
Of Polly Peachum, in the Beggars' Opera 1" 

Speaking of the rival Pollys, Medley says, " they were damned at 
my first rehearsal, for which reason I have cut them out; and to tell 
you the truth, I think the town has honoured 'em enough with talking 
of 'em for a whole month ; tho' faiih, I believe it was owing to their 
having nothing else to talk of." By the way the plan of Sheridan's 



388 LORD MANSFIELD. 

to prove an attractive subject, in an age when a depraved taste 
for such scandalous and indecent details as were gone into at the 
trial, was, to say the least, quite as prevalQut as in our own lime. 
Indeed, no better proof can be given of the general curiosity 
excited by this case, and of the extent to which the account of 
the trial, and of the events that led to it, was circulated, than 
the fact of one pamphlet on the subject having reached a sixth 
edition. In a legal point of view the case still possesses some 
interest, inasmuch as it affords an instance of a practice now 
deservedly exploded in actions for criminal conversation : the 
jury having been directed to find for the plaintiff, notwithstand- 
ing the most direct and unequivocal evidence of collusion on his 
part. The amount of the verdict was ten pounds. 

In support of the account which represents Murray as having 
been entirely unknown and unemployed till the trial of Gibber 
V. Sloper, a letter of Pope's is adduced, supposed to have been 
written in answer toi one wherein the young lawyer had good- 
humouredly complained of his want of business on the circuit. 
There is not, however, the slightest evidence to show that the 
letter in question was addressed to Murray ; and indeed if War- 
burton's arrangement of his friend's papers be correct (which 
there is surely no reason to doubt) it is quite clear that this must 
have been written to a totally different person, since it is classed 
among others dated 1718, a time when Murray was not fourteen 
years of age. Besides, nothing can be more improbable than 
that one fragment, and one only, of their correspondence should 
have been inserted in the collection of the Poet's works. 

The poems of Pope contain several testimonies of his attach- 
ment to Murray. In the fourth book of the Dunciad, which was 
added to the original work in 1742, he very happily introduces 
an allusion to his friend's celebrity, at the same time that he 
vents a bitter and well-merited satire upon the exclusive atten- 
tion paid in our public schools to mere verbal learning, and espe- 

Critic, with the idea of the wise Lord Burleigh shaking his head, &c., 
is taken entirely from this play, or rather farce, of Fielding. We have 
heard that Sheridan, when taxed with appropriating some ideas from 
another quarter, and converting them to the use of Sir Fretful Plagiary* 
was in the habit of taking additional credit to himself for making the 
knight act so much in character. 



LORD MANSFIELD. 389 

cially to Latin versification. A pedant makes his complaint 
before the throne of Dullness, that Westminster Hall and the 
House of Commons should cause all this species of lore so 
speedily to be forgotten, even by those who were once the 
greatest proficients in it. 

" We ply the memory, we load the brain, 
Bind rebel wit, and double chain on chain ; 
Confine the thought to exercise the breath, 
And keep them in the pale of words till death. 
Whate'er the talents, or howe'er design'd, 
We hang one jingling padlock on the mind: 
A poet the first day he dips his quill ; 
And what the last 1 — a very poet still. 
Pity! the charm works only in our wall. 
Lost, too soon lost, in yonder house or hall. 
There truant Wyndham ev'ry muse gave o'er. 
There Talbot sank, and was a wit no more ! 
How sweet an Ovid, Murray, was our boast ! 
How many Martials were in Pulteney lost !" 

Of his imitations of Horace, the sixth epistle, published in 
1737, is addressed to Murray, and contains, among other pas- 
sages relating to him, the following lines : — 

" Grac'd as thou art with all the power of words, 
So known, so honour'd in the House of Lords.* 
Conspicuous scene! Another yet is nigh, 
More silent far, where kings and poets lie; 
Where Murray (long enough his country's pride) 
Shall be no more than Tully or than Hyde !" 

Several anecdotes are recorded of the intimacy of these two 
illustrious friends, from which it appears that their feelings 
towards each other were almost as those of a father and son. 
For instance, an acquaintance of Murray's happening one day 
to enter his chambers abruptly, perceived him practising the ges- 
tures of an orator before a glass, while the poet sate at his side, 
to give his opinion of their effect. Another story gives a still 

* A specimen of bathos hardly surpassed by Colley Gibber's well 
known parody on it : — 

"Persuasion tips his tongue whene'er he talks : 
And he has chambers in the King's Bench Walks." 



390 LORD MANSFIELD. 

better example of the familiarity of their intercourse. It is well 
known that Pope entertained some jealousy of the reputation Dr. 
Friend had acquired for his Latin epitaphs; which feeling, in- 
deed, at one time vented itself in the epigram — 

"Friend, for your epitaphs I'm griev'd, 
Where still so much is said ; 
One half will never be believ'd, 
The other never read." 

He was occasionally seized with a desire of emulating, as 
well as ridiculing the doctor. Towards the decline of his life, 
he was often in the habit of spending his winter evenings in the 
library of Murray's house, in Lincoln's Inn-fields ; and when 
the professional duties of the latter obliged him to leave his 
guest alone, he would employ himself in penning compositions 
of the same kind. These Murray, on his return, never failed to 
throw into the fire, saying, that the finest of English poets, and 
the one who had most embellished his own language, ought to 
write in no other. 

No intimacy could surely be closer, than one which autho- 
rized such friendly liberties as this. To the latest period of 
Pope's life, the same cordial intercourse met with no interrup- 
tion. A few days before his death, he was carried from Twick- 
enham, at his own desire, to dine with Murray, in London. 
This was the last social interview between them. The only 
other guests invited were Bolingbroke and Warburton. By 
Pope's will, Murray was appointed one of his executors, and 
a trifling bequest (a marble bust of Homer, by Bernini, and 
another of Sir Isaac Newton by Guelfi) was left to him, as a me- 
mento of the poet's friendship. Murray was also in possession 
of a portrait of Betterlon the actor, drawn by Pope himself, who 
occasionally amused himself with attempts at painting. 

Before Murray had acquired that high character at the bar 
which secured him the possession of a large income, he was a 
suitor for the hand of Lady Elizabeth Finch, one of the daugh- 
ters of the Earl of Winchelsea and Nottingham. The want of 
adequate fortune was, however, at that time, considered by the 
lady's family an impediment to their union ; and he had some 
reason to fear that a more wealthy rival might supplant him. 



LORD MANSFIELD. 391 

This is pointedly alluded to by Pope, in sonrie lines of the epistle 
quoted above. 

" From morn to night, at senate, Rolls, and hall, 
Plead much, read more, dine late, or not at all. 
But wherefore all this labour, all this strife? 
For fame, for riches, for a noble wife 1 
Shall one whom native learning, birth conspir'd 
To form, not to admire, but be admir'd, 
Sigh, while his Chloe, blind to wit and worth, 
Weds the rich dulness of some son of earth V 

In the Ode to Venus, also, which was published the same year 
(1737), the same topic is touched upon. 

"Mother too fierce of dear desires, 
Turn, turn, to willing hearts your wanton fires ; 
To number five direct your doves, 
Then spread round Murray all your blooming loves : 
Noble and young, who strikes the heart 
With every sprightly, every decent part ; 
Equal the injur'd to defend, 
To charm the mistress, or to fix the friend ; 
He, with a hundred arts refin'd, 
Shall stretch thy conquests over half the kind; 
To him each rival shall submit, 
Make but his riches equal to his wit." 

It is not probable that these encomiums, however well- 
merited, had any influence in overcoming the objections of the 
lady's family. Her own portion, as one of six daughters, being 
of course a small one, it is to be supposed that before her parents 
yielded their assent to the match, Murray was in the receipt of 
an adequate, if not a very large, professional income. The mar- 
riage took place in November 1738, the month previous to the 
trial of Gibber v. Sloper, which may have had the effect of 
greatly increasing the number of his clients and the amount of 
his professional gains, but certainly was not the first occasion of 
his obtaining either. 

This alliance exercised a very material influence over Mur- 
ray's future career. After the resignation of Sir Robert Walpole, 
in February, 1741, among the different appointments which took 
place on the formation of the new ministry, was that of the Earl 



392 LORD MANSFIELD. 

of "VVinchelsea to the post of" First Lord of the Admiralty. His 
promotion to this ofiice is sufTicient evidence of his credit with 
the party then in power; and he had not long to wait for an op- 
portunity of exerting it successfully in behalf of his son-in-law. 
In the course of the following year, the Solicitor-General, Sir 
John Strange, resigned; and the vacant place was immediately 
filled by Murray. This appointment gave him a new sphere for 
the exercise of his talents. With the prudence and caution which 
were distinguishing features of his character, he had hitherto 
withstood the solicitations of his friends to embark in politics, 
and had constantly refused to become a candidate for a seat in 
parliament: alleging, as his reason, that while he continued to 
enjoy the patronage of all parties, he could gain nothing by 
attaching himself to one, a maxim he had probably learnt from 
Pope, who originally had it from Addison. Having once, how- 
ever, taken the decisive step of accepting office, he had no longer 
any motive for refraining to enter the House of Commons ; nor 
indeed could he have avoided doing so, had he been inclined. 
Accordingly, on the 22d of November, 1742 (Parliament having 
assembled on the sixteenth day of the same month), he was re- 
turned for Boroughbridge. This borough being one over which 
the Duke of Newcastle possessed considerable influence, it was 
probably as an avowed adherent of the Pelham party that Mur- 
ray first launched himself into the political world. Among the 
Tories, the Jacobites, and the discontented Whigs, who had 
coalesced in opposition to the measures of Sir Robert Walpole, 
this party may be said to have steered in some sort a middle 
course. That, at least, such was their policy at that period, and 
for some time afterwards, is plainly shown by the Duke's 
favourite project of uniting these conflicting interests ; a project 
which himself and his brother efl"ected, on the resignation of 
Lord Granville (1747), by the formation of the " broad-bot- 
tomed" administration. Such principles as these were exactly 
suited to Murray, who was always averse from extreme or vio- 
lent measures of any kind ; and of whose political conduct 
throughout a long and honourable career, moderation and con- 
sistency were the distinguishing characteristics. 

The former quality he displayed in an eminent degree on the 
occasion of the trial of the rebel lords in 1746, and (much to 



LORD MANSFIELD. 393 

the credit of the times be it said) he displayed it in common 
with every other person concerned in the prosecution. Not 
even the shameless and unnatural attempt of the octogenarian 
Lord Lovat, to save his own life by the sacrifice of his son's, 
could tempt the Solicitor-General to express the indignation it 
must have excited in his breast. He studiously confined himself 
to a plain statement of the facts, and exposition of the evidence, 
which he summed up and commented upon in a manner that 
showed him to be a consummate master of his profession. His 
different speeches on these trials are fully and, as we learn from 
contemporary authority, accurately reported in the State Trials. 
They are probably the only specimens from which a tolerable 
idea may be formed of his forensic eloquence ; though, of course, 
from the nature of the duty he was called on to perform, the 
idea must be a very imperfect one. Towards the conclusion of 
the proceedings, he was warmly complimented both by the 
Attorney-General and Lord Talbot, for the ability he had dis- 
played. Lord Talbot, in particular, said of him that his eminent 
talents had never appeared to such advantage as on that day, 
when his candour and humanity lent an additional grace to his 
eloquence ; and he concluded by expressing his hope that he 
might, at a future period, find the talents of the Solicitor-General 
adding lustre to the highest civil employment in the kingdom. 
From such a character as Lord Lovat, praise could be of little 
value, except inasmuch as, being the praise of a man condemned 
to death, towards him who had principally contributed to pro- 
cure his conviction, it must have been candid and impartial. 
He said he had the honour to be Mr. Murray's relation, though 
it was possible he might not know it ; that his cousin's eloquence 
would have been of great service to him, had it been exerted in 
his behalf; but that although he was the principal sufferer by 
it, he could not refrain from listening to it with pleasure ; 
declared he considered him an honour to his country; and 
hoped his Scottish origin and connexions might not prove a bar 
to the preferment he so well deserved. 

There was some reason for the apprehension intimated by 
Lord Lovat, that the country and the political principles of 
Murray's relations might stand in the way of his advancement. 
His family, though not openly committed in the cause of the 

26 



394 LORD MANSFIELD. 

Pretender, was generally supposed to have preserved its lieredi- 
tary attachment to the house of Stuart ; his elder brotlier, indeed, 
had been, ever since the death of Queen Anne, in the service of 
the exiled prince, from whom he had received the title of Earl 
of Dunbar. Murray's elevation to office under the English 
government had caused some suspicion to prevail among the 
adherents of the Pretender abroad, that this titular Earl of Dun- 
bar was disaffected to their common cause ; and on the other 
hand, with equal injustice, whispers had been industriously cir- 
culated among the political opponents of the solicitor-general, 
that he was secretly attached to the Jacobite principles avowed 
by his brother. Subsequently, it was even imputed to him, that 
his temperate and dispassionate conduct towards the rebel lords, 
when they were brought to trial, was attributable to his prepos- 
session in favour of the cause for which they suffered : a charge 
equally applicable to every person concerned in the prosecution, 
since the behaviour of every indvidual among them was marked 
by the strictest decorum and moderation ; and equally destitute 
of foundation with regard to all, as, had they chosen to indulge 
in invective or vituperation against the prisoners, they would 
only have lowered their own characters as men and gentlemen, 
without thereby in the least strengthening the evidence. If it 
were not that no accusation is too grossly or palpably ridiculous 
for political rancour to countenance against the objects of its 
animosity, we should suppose Murray's enemies would have 
been anxious to avoid any allusion to his conduct on this occa- 
sion ; as it is very certain no servant of the crown exerted him- 
self with more zeal, or with so much effect, as he, throughout 
the whole of the trials. 

After the death of the Prince of Wales, in March 1751, the 
adversaries of Murray's party endeavoured to further certain 
political purposes of their own, by bringing forward, in a more 
tangible shape, the rumours that had been indistinctly noised 
abroad concerning his disaffection to the reigning family. The 
opposition, now deprived of their chief, were reduced almost 
entirely to silence in parliament; but though, for the time, the 
very existence of two separate parties seemed equivocal, indi- 
viduals belonging to both were no less keenly alive to their own 
interests at that period than at most others. The great object 



LORD MANSFIELD. 395 

with every one who aspired to power, was to secure to himself 
or his aUies some place about the person of the young prince 
(afterwards George IIL), it being conjectured (and very reason- 
ably so, as subsequently appeared in the instance of Lord Bute) 
that those who could ingratiate themselves with the heir appa- 
rent would have a very good chance of obtaining a share in the 
government when he became king. Accordingly, there was as 
much of intriguing to procure the management of the future 
sovereign, as ever there had been of fighting among the Greeks 
and Trojans to secure the body of Patroclus. Now it happened 
that Andrew Stone, the Duke of Newcastle's secretary, was one 
of the Prince's governors ; and another was Johnson, Bishop of 
Gloucester. Both had been contemporaries of Murray at West- 
minster, and the intimacy of the three had continued ever since; 
insomuch that Johnson owed his rise, from the place of second 
master of the school to a seat on the bench of bishops, entirely 
to the interest of Stone and Murray. It may easily, therefore, 
be conceived with what satisfaction the intriguers seized on an 
opportunity of bringing forward an accusation which implicated 
the three at once, and charged them with the common sin of 
Jacobitism. 

Early in February 1753, Lord Ravensworlh came suddenly 
to town, and gave Mr. Pelham to understand that he had a charge 
of this nature to prefer. The information was by no means 
graciously received. Indeed the minister appeared very little 
disposed to proceed to an inquiry. But as the whole affair had 
been communicated to several of the opposition, he could not 
avoid an investigation ; and it was decided that Lord Ravens- 
worth should communicate his intelligence to the privy council. 
It is not our intention to enter into the details of the proceedings. 
They are given with great minuteness in Horace Walpole's Me- 
moirs, and may be found, in a more condensed form, among the 
other gossippings of Bubb Doddington's Diary, to which works 
we must refer our readers for more ample information on the 
subject. Suffice it to mention here, that after a long and 
tedious sifting of the matter, it appeared there was no better 
foundation for the charge, than some loose words casually 
dropped by one Fawcett, an attorney at Newcastle, in a con- 
versation at table ; which intimated that, upwards of twenty 



396 LORD MANSFIELD. 

years previously, he had known Murray, Johnson, and Stone to 
visit a notorious Jacobite named Vernon, and that at his table 
they were in the habit of pledging the Pretender's health. Even 
this evidence, litde as it went to prove, was prevaricated upon, 
and explained away, and partially retracted by Fawcett himself, 
when summoned before the council ; and the fact alleged was 
distinctly and solemnly denied by each of the parties accused. 
Upon this the charge was at length altogether dismissed ; and an 
attempt set on foot by Lord Ravensworth and the Duke of Bed- 
ford to revive the subject, in the shape of a parliamentary inquiry, 
proved utterly abortive. 

Vernon, the Jacobite alluded to by Fawcett, although he fol- 
lowed the calling of a. mercer, was a member of the ancient Der- 
byshire family of that name. Murray, Stone, and Johnson, had 
all been intimate with his son at Westminster school, and their 
boyish friendship led to an acquaintance with himself, which 
was continued after they had left the University. For Murray, 
indeed, he soon conceived a warm attachment, insomuch that, 
on the death of his only son, he considered him as his heir ; and 
eventually left him, by his will, a property in Cheshire and Der- 
byshire, which was estimated at the value of more than ten 
thousand pounds. This was some time after Murray's marriage. 
The testimony of Fawcett all bore reference to an earlier period, 
when Murray was a young lawyer, and Stone and Johnson were 
both in obscurity. At that time it appears that young Vernon 
and his three friends used frequently to sup at his father's house 
in Cheapside, on which occasions there is little doubt that the 
old tradesman made no secret of his attachment to the Jacobite 
party. Whether the others ever thought fit to humour him 
so far as to avow a similar predilection, was the question that 
constituted the whole gist of the deep and serious investigation 
before the council. The only person who treated the affair 
as it deserved was the king himself, who repeatedly declared it 
was of very little importance to him what the parties accused 
might have said, or done, or thought, while they were little 
more than boys : he was quite satisfied with the assurance that 
they had since become his very faithful subjects and trusty ser- 
vants. 

Putting Murray's solemn asseveration of the falsehood of 



LORD MANSFIELD. 397 

Fawcett's statement entirely aside, we think the constant drink- 
ing of the Pretender's health before a mixed company, at a time 
when such symptoms of disaffection might, and often did, entail 
very awkward consequences on the persons displaying them, 
would have been an act quite inconsistent with the caution and 
the prudence of his character. Whether the improbability of 
the charge, coupled with his own denial of its truth, were then 
generally considered sufficient to disprove it altogether, we have 
no means of ascertaining. But his political opponents either did 
give it entire credence, or had their own reasons for affecting to 
do so ; and the imputation of this political crime was, for many 
years afterwards, a favourite weapon with his assailants. Even 
so late as the time of Junius, we find it turned against him ; and 
Home Tooke, when he was tried in the Court of King's Bench, 
had no scruple in making free use of it. But it was in the hands 
of Pitt, and shortly after the investigation, that it proved most 
formidable. At the time the charge was made, Pitt was him- 
self a member of the administration ; and though his feelings of 
jealousy or personal enmity did occasionally betray themselves, 
even while he was enlisted under the same banner with Murray, 
he of course could not then make an habitual show of hostility 
against him. But on the death of Mr. Pelham (March, 1754), 
and his subsequent dismissal from the office of paymaster of the 
forces, which happened the year afterwards (November 1755), 
he was thrown into opposition, and had full opportunity of 
giving scope to his eloquence in repeated attacks against all the 
adherents of the Duke of Newcastle. Murray, as the acknow- 
ledged leader and champion of the ministerial party in the 
House of Commons, would naturally have been singled out by 
him as the opponent most worthy to be coped with, and most 
difficult to silence, even had he not been further instigated 
against him by that spirit of personal rivalry, which, according 
to Horace Walpole (and in such a case we may give full credit 
even to this prejudiced partisan), had materially contributed to 
bring about his defection from their common cause. Many ex- 
amples of his attacks upon Murray, and some in which he 
taunted him with his supposed inclination towards Jacobitism, 
may be found in Walpole's Memoirs. From them it would ap- 
pear that Pitt never failed to have the advantage, and that Mur- 



398 LORD MANSFIELD. 

ray invariably quailed beneath the pointed sarcasms of this great 
orator. The aulhorily is no doubt questionable; but the ac- 
count, nevertheless, wears the appearance of truth. There was 
a degree of timidity about the character of Murray, which was 
very likely to unfit him for stemming such bold and rapid tor- 
rents of invective or irony as the genius of Pitt delighted to pour 
forth. In closeness of argument, in happiness of illustration, in 
copiousness of grace and diction, the oratory of Murray was un- 
surpassed ; and, indeed, in all the qualities which conspire to 
form an able debater, he is allowed to have been Pitt's superior. 
When measures were attacked, no one was better capable of de- 
fending them ; when reasoning was the weapon employed, none 
handled it with such effect ; but against declamatory invective 
his very temperament incapacitated him from contending with 
so much advantage. He was like an accomplished fencer, invul- 
nerable to the thrusts of a small sword, but not equally able to 
ward off the downright stroke of a bludgeon. 

We have the testimony of every historian of Murray's time, 
to his ability as a parliamentary orator. In the House of Com- 
mons he had no competitor but Pitt. " They alone," says Lord 
Chesterfield, "can inflame or quiet the House; they alone are 
attended to in that numerous and noisy assembly, that you might 
hear a pin fall, while either of them is speaking." Horace Wal- 
pole's frequent testimony to the same purpose is the more 
valuable, inasmuch as he .gives it with evident reluctance. Un- 
fortunately we have now no better means of estimating Murray's 
skill as a debater, than by the effects it produced. Pretended 
reports of his speeches in Parliament may be found among the 
publications of the day ; but there is none on which we can place 
much reliance, even as far as the arguments are concerned, much 
less the language, which indeed they scarcely affected to give 
with accuracy. It was in 1738 that the House of Commons 
declared it a breach of privilege to print any account of its de- 
bates ; and though this had no further direct effect than that of 
inducing booksellers to publish them under fictitious titles (such 
as the debates of the kingdom of Lilliput in the Gentleman's 
Magazine), yet it certainly acted as a check upon reporters, who 
might previously have been in the habit of openly taking their 
notes in the gallery. For the most part, therefore, a general 



LORD MANSFIELD. 399 

notion of the subject of debate, with a more or less vague recol- 
lection, or perhaps a few loose memoranda of the principal topics 
insisted upon by the speakers, were the only materials which 
the professional caterers for public curiosity could command. 
Upon this slender ground- work, or often upon none at all, they 
were in the habit of constructing compositions, which were 
given out as the actual record of the proceedings of the house ; 
though for the whole of the language, and the greater part of 
the ideas, they were often indebted in a much greater degree to 
their invention than their memory. The account of the maga- 
zine spjsech-maker, in Jonathan Wild, is perhaps not very 
highly caricatured. Horace Walpole, and some few other 
writers of his class, who have acquainted us in a summary way 
with the most important transactions of Parliament during their 
own time, have not in any case attempted more than an outline 
of any particular debate. The highest credit is certainly due to 
the industry and the skill, with which the editors of the Par- 
liamentary History have availed themselves of several important 
manuscript notes taken by different members, who were present 
at the debates ; but from such imperfect and sometimes preju- 
diced accounts as these, we can no more form a just or adequate 
notion of Murray's powers as an orator, than from the mere 
general description of his commanding though not tall figure, 
his graceful gestures, his sparkling eye, and his melodious 
voice, we can bring before our imagination a correct picture of 
the man. 

The well-earned celebrity of Murray, both as a debater and 
as a statesman, raised a general expectation that he would be se- 
lected as the fittest person to succeed Mr. Pelham in the cabinet. 
His high parliamentary reputation, however, had never estranged 
him from his profession, to which, and to which alone, he had 
repeatedly declared he would look for preferment. Walpole, 
indeed, in speaking of his claims to the office of prime minister, 
insinuates that he was not disinclined to advance them, but "was 
always waiving what he was always courting." No one, how- 
ever, who has read this aflfected writer's memoirs, and been 
fatigued with his incessant strainings after antithesis, will require^ 
to be told that he makes little scruple of sacrificing truth, and 
distorting if not wholly mis-stating facts, whenever by so doing 



400 LORD MANSFIELD. 

he can contrive to torture his language into a point. In this he 
strictly resembles the school of French writers, on which he had 
evidently modelled his style. It must, however, be acknow- 
ledged that he involuntarily corrects many of his misrepresenta- 
tions delivered in the form of such conceits as the one just 
quoted, by contradicting them in some of the few places where 
he condescends to express himself in plain language. Thus, in 
a subsequent part of his memoirs, finding, no doubt, that what 
he was about to state could by no ingenuity be converted into a 
resting place for the see-saw of an antithesis, he distinctly and 
simply declares the fact mentioned above (which is besides au- 
thenticated by other authority), that INIurray invariably refused 
to go out of his profession for advancement. 

He had not long to wait for an opportunity of rising to the 
very eminence which had probably been, throughout his whole 
career, the object of his ambition. The Chief Justice of the 
King's Bench, Sir William Lee, died within a month after Mr. 
Pelham (8th April, 1754), and Sir Dudley Ryder being appointed 
to succeed him, the vacant post of Attorney-General fell lo the 
lot of Murray. In little more than two years afterwards (July 
1756), the death of Sir Dudley left the place of Chief Justice 
of England open to him. The claims of Murray to succeed to 
this office were incontestable, and indeed no attempt was made 
to deny them. But the peculiar circumstances in which the 
Duke of Newcastle was at that time placed, in consequence of 
the loss of Minorca, made him more than ever anxious to retain 
in the Flouse of Commons his ablest and most powerful ally, 
without whose assistance he was aware it would be vain to in- 
dulge the hope of continuing at the head of the administration. 
Every effort was accordingly made by him to induce Murray to 
forego his claims at that critical period. We are assured by 
Horace Walpole, that he offered him (in addition to his place of 
Attorney-General, the emoluments of which were computed at 
about 7000/. a year), the Duchy of Lancaster with a pension of 
2000/., and the reversion of a tellership of the Exchequer for 
his nephew". Lord Storm ont. At the beginning of October, 
after every attempt to procure a coalition with Pitt had failed, 
and as the approaching meeting of Parliament was about to bring 
matters to a crisis, the same authority informs us, that the Duke 



LORD MANSFIELD. 401 

bid up as high as 7000/. a year in pensions, on condition that 
Murray would retain his seat in the House of Comnaons for a 
month, a week, nay even for one day. Murray, however, was 
resohite in his refusal. The office of Chief Justice of the King's 
Bench, with a peerage, was one he had long been aspiring to, 
and for which indeed he had foregone every opportunity of rising, 
by means independent of his profession. His professional re- 
putation had kept pace with his political ; and the bar at that 
time could produce none able to compete with him. He, there- 
fore, justly considered himself entitled, as a matter of right, to 
an office of which no man in the kingdom was so able to dis- 
charge the duties, and which he had earned by a sufficiently 
long and extremely arduous course of services to government. 
Finding, therefore, the Duke of Newcastle selfishly resolved to 
neglect no means of withholding it from him, he at length gave 
his Grace to understand, that if his claims were disregarded, the 
ministry should gain nothing by his disappointment, as he would 
throw up the attorney-generalship, and leave them to encounter 
the coming storm by themselves. This intimation was decisive. 
The Duke had now no alternative but to resign, and consequently 
no motive for wishing to deprive Murray of the honours he had 
so well merited. Accordingly on the 8lh November, 1756, he 
was called to the degree of serjeant, and the same evening was 
sworn in as Chief Justice of the King's Bench, at the Chancel- 
lor's house in Ormond-street, the other judges and most of the 
officers of the court being in attendance. Immediately afterwards 
the great seal was appended to a patent, creating him Baron 
Mansfield, of Mansfield in the county of Nottingham. On the 
following Thursday (November 11th), he took his seat in the 
Court of King's Bench. 

On the same day the Duke of Newcastle resigned his office 
of prime minister; and in the following week (Nov. 19), Lord 
Hardwicke gave up the great seal. The same political motives 
which had induced him to quit the woolsack were, of course, 
sufficient to prevent Lord Mansfield, who had been his colleague 
in the cabinet, from becoming his successor; and he accordingly 
declined accepting the vacant place, thoug^h repeatedly and ear- 
nestly pressed upon him. The seals were shortly afterwards put 
in commission; Sir John Willes, the Chief Justice of the Com- 



402 LORD MANSFIELD. 

mon Pleas, Sir John Eardley Wilmot, a puisne judge of the 
King's Bench, and Sir Sidney Stafford Smythe, third Baron of 
the Exchequer, being appointed to execute the legal functions of 
the Chancellor. The administration, however, under which 
these arrangements took place was not of long duration. The 
king's personal feelings of dislike against Pitt gave every advan- 
tage to the opponents of the minister, in their endeavours to oust 
him from his office ; and they had not to wait later than the 
spring of the ensuing year before their efforts were successful. 
Pitt was displaced in the beginning of April, and for about eleven 
weeks there was actually no administration, this lime being em- 
ployed in fruitless attempts to unite the conflicting interests, 
passions, and pretensions of the adherents of Fox and the Duke 
of Newcastle. The endeavour miscarried, notwithstanding the 
Duke's readiness to make almost any concession for the purpose 
of effecting such a coalition, and the advantage he derived from 
the assistance of his friend. Lord Mansfield, in the course of the 
negotiation. The chancellorship of the exchequer had been 
given up by Mr. Legge, on the resignation of Pitt; and the 
forms of that office not admitting the absence of a chief, it had 
been entrusted (9th April), till the new ministry should be formed, 
to the Chief Justice of the King's Bench, as it had been to 
Chief Justice Lee on the death of Mr. Pelham, and to Chief 
Justice Pratt on the dismissal of Aislabie, in the time of George 
the First. This appointment gave Lord Mansfield frequent ac- 
cess to the king, by whom he was confidentially consulted on 
the subject of the different ministerial arrangements then in con- 
templation. The difficulties that stood in the way of the forma- 
tion of a cabinet were, as it is well known, finally adjusted by 
a junction between Pitt and the Duke of Newcastle, the latter 
being appointed to the Treasury, and the former becoming secre- 
tary of state. The seals of the exchequer were then given up 
by Lord Mansfield, that Legge might be reinstated in the post 
he had quitted. 

The new ministry kissed hands on the 29th of June, and on 
the day following the Chancery commissioners resigned in 
favour of Lord Mansfield's former school-fellow, Sir Robert 
Henley, who had succeeded him as Attorney-General. He took 
the seals, with the title of Lord Keeper, which he retained till 



LORD MANSFIELD. 403 

the accession of George the Third, when, after the customary- 
resignation, they were re-delivered to him as Lord Chancellor, 
and he was created Earl of Northington. More difficulties had 
been experienced by the Duke of Newcastle and his colleague in 
filling this office, than any other at their disposal. It had first 
been offered to Lord Hardwicke, who declined it on account 
of his advanced age. It was then once more tendered to Lord 
Mansfield ; but he saw sufficient reason, in the apparently un- 
settled state of the ministry, to justify his refusal ; and Sir Tho- 
mas Clarke, the Master of the Rolls, was also prudent enough 
to resist the temptation of quitting his own secure place for the 
sake of so precarious an elevation. Chief Justice Willes would 
not accept it without a peerage, which the ministry refused to 
give him ; and the unambitious Sir John Wilmot would take it 
on no condition whatever. In short, the offer was not made to 
Sir Robert Henley till it had been the round of half the judges 
of the kingdom. This promotion enabled Pitt to insist on the 
appointment of his friend Pratt (afterwards Lord Camden) to 
the attorney-generalship. Charles Yorke kept his place as 
Solicitor. 

The Duke of Newcastle had been the more anxious to over- 
come Lord Mansfield's objections against accepting the post of 
Chancellor, that he knew by experience how able a coadjutor he 
would prove as one of the administration. Finding himself, 
however, foiled in this object, and not being able to reconcile 
himself to the loss of his services, he had recourse to the dan- 
gerous and unconstitutional expedient, which has of late years 
been resorted to in the case of Lord Ellenborough, but which it 
is to be hoped will never again be attempted, of enrolling the 
Chief Justice of King's Bench among the members of the cabinet. 
With the exception, however, of a short period during the year 
1765, when he was nominated as one of the council of regency. 
Lord Mansfield ceased to be an active member as early as 1763. 
He then refused to sit with the Duke of Bedford ; and, though 
subsequently consulted by ministers on occasions when they 
required his assistance, he never afterwards resumed his place in 
the cabinet. 

In the Court of King's Bench it was his lot to preside a much 
longer period than any other judge, either before or since, has 



404 LORD MANSFIELD. 

sat in any English court of justice. In the course of nearly 
thirly-tvvo years that he remained there, many changes took 
place among his colleagues. "When he first took his seat, the 
puisne justices in the King's Bench were Sir Thomas Denison, 
Sir Michael Foster, and Sir John Wilmot ; though the last, from 
the time he was named as one of the commissioners of the great 
seal, was rarely present in his own court till his resignation of 
that office. Sir Michael Foster died on the 7th of Nov. 1763, 
after an illness which had disabled him from attending to his 
duties for more than two terms previous, and on the 24th of the 
following January, his place was filled by the elevation of Sir 
Joseph Yates to the Bench, On the 14lh of February, 1765, 
Sir Thomas Denison resigned, and the vacant post was occupied 
on the first day of the ensuing Easter term by Sir Richard Aston, 
who had been Chief Justice of the Common Pleas in Ireland. 
On the resignation of Lord Northington, Sir John Wilmot be- 
came Chief Justice of the Common Pleas (21st of August, 1766) 
in the room of Lord Camden, who was appointed to the chan- 
cellorship. Serjeant Hewitt, being created a judge of the King's 
Bench before the end of the long vacation, took his seat in court 
on the first day of Michaelmas term ; and about a year after- 
wards, when he was promoted, with the title of Lord Liff*ord, to 
the chancellorship of Ireland, the Solicitor-General, Edward 
Willes, who was the second son of the former Chief Justice of 
the Common Pleas, was made a puisne judge in his stead. Lie 
took his seat on the 27th of January, 1768. In the vacation 
between Hilary and Easter terms 1770, Sir Joseph Yates was 
transferred to the Common Pleas in the place of Mr. Justice 
Clive, who had resigned. He was succeeded in the King's 
Bench by Sir William Blackstone, who afterwards, on the death 
of his former predecessor, (7th June, 1770) removed to the Com- 
mon Pleas. During the sarfle month, the vacancy thus created 
in the King's Bench was filled by Sir William Henry Ashnrst. 
On the 14th of January, 1777, Mr. Justice Willes died, and Sir 
Nash Grose was appointed to his place on the 9th of the follow- 
ing month. The death of Sir Richard Aston took place on the 
1st of March, 1778, and on the first day of the next Easter term, 
the vacant seat was taken by Sir Edward Buller. All these 
changes occurred while Lord Mansfield occupied the station of 



LORD MANSFIELD. 405 

Chief Justice of the Court. That his opinions on the many- 
hundreds of legal points which came under the notice of himself 
and his colleagues during this long period, were almost without 
a single exception adopted or coincided with by a set of judges, 
than whom no period of our legal history can boast of more able 
or. more upright men, is a fact which of itself forms a splendid 
eulogium on his learning, his genius, atid his integrity. 

We are told by Sir James Burrow, that while he continued 
to report the decisions of the court, which was from the time of 
Lord Mansfield's first taking his seat there to the end of Hilary 
Term, 1772, (12 Geo. 3.) and even up to the date of their pub- 
lication (1776), there was no instance of a final difference of 
opinion among the judges in any case, except in the celebrated 
literary property cause. Miller v. Taylor, and the equally well- 
known one of Perryn v. Blake. With the exception, too, of 
these cases, no judgment given during that time was reversed 
either in the Exchequer Chamber or in the House of Lords ; 
and even in these, the decisions of the Court of King's Bench 
were not overruled without much doubt and diversity of opinion 
among the other judges. During the same period, not a single 
bill of exceptions had ever been tendered ; and, although the 
average number of causes annually disposed of was upwards of 
eight hundred, it had never happened in the course of a year that 
so many as thirty came before the court a second time, in the 
form of special cases, or by motions for new trial. " And yet," 
says Burrow, " notwithstanding this immensity of business, it is 
notorious, that in consequence of method and a few rules which 
have been laid down to prevent delay (even where the parties 
themselves would willingly consent to it), nothing now hangs in 
court. Upon the last day of the very last term, if we exclude 
such motions of the term as by the desire of the parties went 
over of course as peremptories, there was not a single matter of 
any kind that remained undetermined, excepting one relating to 
the proprietary lordship of Maryland, which was professedly 
postponed on account of the present situation of America. One 
might speak to the same effect concerning the last day of any 
former term, for some years backward." 

The efficiency and dispatch with which the whole business 
of the court was conducted, was due in a great degree to several 



406 LORD MANSFIELD. 

improvements in practice introduced by Lord Mansfield. Before 
his time, whenever a special case or special verdict liad been 
agreed upon, it had been usually left to be drawn up and settled 
at the leisure of the parties, without the interference of the court ; 
a custom which often occasioned considerable delay before the 
case could be set down for argument, since frequent disputes 
arose as to trifling matters of fact which could only be decided 
by repeated attendances before a judge, and in some instances, 
only by a new trial. Lord Mansfield remedied this evil, by 
causing the special case or verdict to be drawn up before the jury 
was discharged, so that doubts as to matters of fact could be 
satisfactorily decided by a reference to them, and any other dis- 
puted points could be settled on the spot by the judge. It was 
then signed in court by the counsel on either side, after which, 
of course, no further contest could take place on the subject. 
When a cause was set down for argument, the parties could not 
only calculcate with certainty on a speedy judgment, but they 
had no power, even were they so disposed, to procrastinate the 
decision. The former custom of permitting counsel or their 
clients to put off the hearing by consent, was no longer allowed 
by Lord Mansfield. No delay could be procured, except when 
applied for beforehand by motion, and on showing by affidavit 
good cause for postponement. Again, it had formerly been usual 
to hear, at different intervals, two, three, or even four successive 
arguments on every case of importance, before judgment was 
given. Lord Mansfield seldom allowed more than one ; and 
instead of postponing the decision, he always, except in cases of 
difficulty, made it a point to give judgment immediately. In the 
very first case reported by Burrow [Raynard v. Chace), which 
was argued the day after he first took his seat on the bench, the 
counsel and their clients, who expected as a matter of course 
that there would be at least a second, and perhaps a third hear- 
ing, before the judges would undertake to pronounce their deci- 
sion, were surprised to hear from the new Chief Justice, that 
the Court, having no doubts on the subject in dispute, considered 
itself bound as well to spare the parties the cost and delay of 
further discussion, as to terminate the suspense of others who 
might be interested in the decision of the question, and would 
accordingly give judgment at once. 



LORD MANSFIELD. 407 

Those who are conversant with the routine of the courts will 
have no difficulty in conceiving how much these alterations, and 
others of the same tendency, must have done towards facilitating 
and expediting the administration of justice. It is obvious, 
however, that mere rules of practice can never be of themselves 
sufficient to effect this object: and, indeed, that their efficacy 
must always depend on the learning and the energy of those 
who sit on the bench. That energy was not wanting, is suffi- 
ciently attested by the amount of business annually disposed of. 
To prove that there was legal knowledge in abundance, it would 
be enough, one would think, simply to state the fact, that out of 
the multitude of judgments given by the Court of King's 
Bench, not only during the period mentioned by Burrow, but 
during the whole course of Lord Mansfield's chief-justiceship, 
two only were reversed by the House of Lords. Even putting 
this out of the question, we confess ourselves quite unable to 
conceive how any one familiar with his reported decisions can 
countenance the notion that he was deficient in professional 
learning. Nevertheless, as such an imputation has been brought 
against him from more than one quarter, it is incumbent on us to 
inquire, not what foundation there is for the charge, (for this we 
candidly acknowledge our inabihty to ascertain,) but what 
causes may have contributed to give it birth. 

In the first place, then, it is highly probable that the brilliancy 
of his genius, together with the extent and the variety of his 
acquirements, may have obscured and thrown into the shade 
whatever of mere learning he possessed. That this has frequently 
happened, it would be easy to prove by a number of examples. 
A very great majority of the admirers of Bacon, for instance, are 
not at all aware of his celebrity as a practical lawyer ; and those 
who are, in enumerating his titles to fame, seldom think it worth 
while to dwell much on his legal knowledge, because this, and 
indeed, mere knowledge of any sort, being within the reach of a 
very ordinary intellect, the fact of his having possessed it could 
add nothing to a reputation such as his. The same may have 
been the case, though in a less degree, with regard to Mansfield ; 
and his panegyrists having constantly expatiated rather on the 
qualifications which distinguished him from most of his contem- 
poraries at the bar or on the bench, than on the single one which 



408 LORD MANSFIELD. 

f 
he possessed in common with perhaps the majority of them, his 
detractors have been enabled, without much fear of contradiction, 
to assume, that in this very quaUfication he was deficient. 

"It is with genius," says Pope, "as with a fine fashion: all 
those are displeased at it who are not able to follow it." This 
apophthegm, tliere can be no doubt, has something of the fault 
of most smart sayings, namely, that it is not altogether true. 
But partially so it assuredly is; for whenever any individual 
outstrips his competitors in the toilsome ascent up the steep of 
Fame, there will always be many among them who, in despair 
of being able to raise themselves up to his level, will console 
themselves by endeavouring to pull him down to their own. 
And the general aeluctance, which prevails among a large class 
of mankind to acknowledge a superiority of any sort in their 
fellows, is augmented in a rapidly increasing ratio when superi- 
ority is aimed at in more than one particular. A single claim to 
excellence is rarely admitted without cavilling and dispute ; but 
he that puts in several must look to have them contested without 
end. If such a man be a lawyer, he will still further have to 
contend against the popular notion almost universally prevalent 
in this country, and warranted, it is to be feared, by too many 
examples, that a thorough lawyer cannot by possibility he any 
thing else : of which proposition the converse being necessarily 
implied, it follows, as an unavoidable consequence, that he who 
makes good his title to any other species of excellence is 
assumed to be no lawyer at all. 

Another circumstance which, in the eyes of many, was likely 
to lend some countenance to this opinion with respect to Lord 
Mansfield, was that he was entirely above the solemn pedantry 
and affectation of learning, which often pass current for learning 
itself. We have heard it related of a barrister not many years 
since deceased, who by means partly of this very species of 
affectation, and partly of other even more unworthy artifices, had 
contrived to insinuate himself into a tolerably large practice, that 
when this desired end was once attained, he often, in familiar 
conversation with his friends, was wont exultingly to exclaim, 
" Thank God, I can now afford to dispense with humbug." 
Lord Mansfield chose to dispense with it all his life. The re- 
spect and admiration he always felt and professed for the general 



I 



LORD MANSFIELD. 409 

wisdom and beauty of our jurisprudence, did not prevent him 
from making light of some blemishes that disfigure it. The 
science of pleading, for instance, he valued, because he could 
understand its spirit ; but for the solemn fooleries which lessen 
its utility and detract from its dignity (excrescences which mere 
men of routine think themselves bound to admire, simply be- 
cause they cannot perceive them to be excrescences and nothing 
more), he seldom scrupled to avow his contempt. A mind like 
his could distinguish the chaff from the grain ; and he never 
attempted to impose either on himself or on others, by con- 
sidering both as of the same value. He was equally above the 
silly attempts made by many to enhance the dignity of legal 
science, or the merit of those who have distinguished them- 
selves among its professors, by overrating the difficulties that 
attend the acquirement of it. He used to say, that the number 
of books it was necessary for a student to make himself familiar 
with, was commonly very much exaggerated, and that many 
were read merely for the sake of acquiring knowledge which it 
was not absolutely essential to possess, but of which it might be 
hurtful to a lawyer's general reputation that he should be sup- 
posed ignorant. It was a mistake, he observed, to think that 
the increase of legal works added to the necessary amount of 
reading, since several of the older treatises were entirely super- 
seded by others of more modern date ; as, for example, in the 
case of Finch's Law, and Wood's Institutes, which had formerly 
been put into the hands of every beginner, but which no one 
thought of studying after the appearance of Blackstone's Com- 
mentaries. Of Coke he always spoke disparagingly ; and to 
speak in any other than terms of admiration of an author whose 
fame has been in a great degree acquired by his immense fund 
of learning, no matter how confusedly heaped together, is, we 
all know, a great crime in the opinion of those who can rest 
their pretensions to celebrity on no other foundation ; besides 
which, as the sneers such persons are constantly wont to vent 
against enlarged views of legal science, have generally no other 
motive than their own inability to conceive or to comprehend 
any enlarged notions at all, so they, in general, think fit to as- 
sume that mere erudition can be held cheap only by men who 
possess little or none of it themselves. Were it worth while to 

27 



410 LORD MANSFIELD. 

enter upon a formal refutation of this very common fallacy, we 
might dwell much on the incontestable fact, that the most learned 
men are by no means universally the most forward to make 
parade of their erudition, any more than the most wealthy are 
those who take the greatest pride in speaking of their riches, or 
the most nobly descended in boasting of their ancestry. The 
real benefit of learning, it has been said by a man well qualified 
to speak on the subject, is to be seen in the general tenor of a 
man's thoughts and style ; and the profuse citing of authorities 
and repeating of quotations is, for the most part, confined to 
smatterers, just on the same principle that tradesmen, whose 
stock of goods is scanty, seldom fail to make a great display in 
their shop windows. And we may further observe, without 
wishing to impugn the use, nay the necessity, of learning, with 
which, indeed, a lawyer can no more dispense than a handi- 
craftsman with his tools, that it is after all but a mere instrument, 
the eflfect whereof depends entirely on the skill of him who 
wields it. The self-same brush and the self-same colours with 
which a dauber contrives to disfigure a sign-board, might breathe 
life into the canvass under the hands of a Vandyck or a 
Reynolds. 

Perhaps the occasional departure of Lord Mansfield, in his 
judgments, from the strict rules which had been laid down by 
his predecessors, may have caused it to be inferred by some that 
he was not suflnciently imbued with the knowledge of them. 
However this may be, it is certain that his anxiety to decide 
every case on the merits rather than on mere matter of form ; 
his disposition to slight or to overrule judgments which had 
been founded on principles obviously no longer applicable to the 
state of aflfairs and of society ; in short, his constant wish to ad- 
minister justice as well as law (they are not always synonymous), 
gave rise to much discontent and murmuring among many of the 
older practitioners of the bar. They might all shut up their old 
law books, they used to say, and content themselves with the 
only authority that had any weight in court, namely Burrow- 
Mansfield, by which appellation Burrow's Reports were at that 
time generally designated among the profession. The same 
charge was explicitly made by Junius, in his well-known Letter 
to the Chief Justice, dated November 14, 1770. "Instead of 



LORD MANSFIELD. 411 

those certain positive rules by which the judgments of a court 
of law should invariably be determined, you have fondly intro- 
duced your own unsettled notions of equity and substantial jus- 
tice. Decisions given upon such principles do not alarm the 
public so much as they ought, because the consequence and ten- 
dency of each particular instance is not observed or regarded. 
In the mean time the practice gains ground ; the Court of 
King's Bench becomes a court of equity ; and the judge, instead 
of consulting the law of the land, refers only to the wisdom of 
the court, and the purity of his own conscience." The probable 
consequence that would arise from a system of purely discre- 
tionary judgment in a court of law, is here, no doubt, well and 
forcibly pointed out: but who that reflects for an instant can be- 
lieve that Lord Manstield, or any other English judge, ever did 
or ever could lay himself open to so sweeping a charge as this? 
Surely the single fact, that his decisions were rarely appealed 
from, and, when appealed from, were almost invariably ratified 
by the courts above, is of itself quite sufficient to prove that, as 
a general imputation, the charge is groundless. 

It cannot be denied that his anxiety to remedy particular 
grievances did occasionally lead him to overpass the strict 
boundaries which, without regard to isolated cases, wherein they 
may work partial inconvenience, or even injustice, our laws have 
set up for the general security and advantage of the community. 
We may quote, as an example, his well-known dictum in the 
case of Corbet v. Poelnitz (I T. R. 5), where he overruled the 
established doctrine, that a feme covert can neither sue nor be 
sued, nor can possess any property in her own right ; giving as 
his reason, that as times alter, new customs and manners arise, 
in consideration of which exceptions must be made, and must 
be variously applied. However, it would not be easy to find 
many other instances such as this. There can be no doubt that, 
even long before he was called to the bench, he had come to the 
setded conviction that the adaptation of judicial decisions to the 
manners, the wants, and the spirit of the times, was a benefit too 
great to be sacrificed for the sake of maintaining a rigid and 
literal uniformity with precedents which may have had their 
origin in a very different state of society. But he was always 
aware of the necessity of considerino^ attentively the decisions of 



412 LORD MANSFIELD. 

his predecessors, even when he could not follow ihem to the very 
letter. Indeed, he used to say his situation often resembled the 
one in which Sir Joshua Reynolds placed Garrick, between tra- 
gedy and comedy, inclination pulling him one way, and precedent 
the other. 

Burke, in commenting on the principles of evidence discussed 
in the case of Omichund v. Barker (1 Atkyns), says: — "The 
sentiments of Murray, then Solicitor-General, afterwards Lord 
Mansfield, are of no small weight in themselves, and they are 
authority, by being judicially adopted. His ideas go to the grow- 
ing melioration of the law, by making its liberality keep pace 
with the demands of justice and the actual concerns of the world ; 
not restricting the infinitely diversified occasions of men, and the 
rules of natural justice, within artificial circumscriptions, but 
conforming our jurisprudence to the growth of our commerce 
and of our empire. This enlargement of our concerns, he ap- 
pears, in the year 1744, almost to have foreseen, and he lived to 
behold it." 

This, and several other passages of the like tenor, wherein the 
most brilliant encomiums are applied to Lord Mansfield, (" that 
great light of the law," as he is called,) are to be found in the 
report of the committee of the House of Commons, appointed to 
inspect the Lords' Journals (5th March 1794) with reference to 
the proceedings in the trial of Warren Hastings, which report 
was wholly drawn up by Burke, and is inserted in most of the 
editions of his w^orks. We shall make one further extract from 
it, which appears to us to account very satisfactorily, and with 
great judgment as well as acuteness, for the severe enforcement, 
in former days, of many of those very rules Lord Mansfield is 
especially commended for palliating, or even dispensing with. 
*' In ancient times it has happened to the law of England (as in 
pleading, so in matters of evidence), that a rigid strictness in the 
application of technical rules has been more observed than at 
present it is. In the more early ages, as the minds of the judges 
were, in general, less conversant in the aflTairs of the world, as 
the sphere of their jurisdiction was less extensive, and as the 
matters which came before them were of less variety and com- 
plexity, the rule being in general right, not so much inconveni- 
ence on the whole was found from a literal adherence to it, as 



LORD MANSFIELD. 413 

might have arisen from an endeavour towards a liberal and 
equitable departure, for which further experience, and a more 
continued cultivation of equity as a science, had not then so fully- 
prepared them. In those times that judicial polity was not to be 
condemned. We find, too, that, probably from the same cause, 
most of their doctrine leaned towards the restriction ; and the old 
lawyers being bred according to the then philosophy of the 
schools, in habits of great subtlety and refinement of distinction, 
and having once taken that bent, very great acuteness of mind 
was displayed in maintaining every rule, every maxim, every 
presumption of law jcreation, and every fiction of law, with a 
punctilious exactness. And this seems to have been the course 
which laws have taken in every nation." 

The evils which have resulted from a too strict adherence to 
the practice of earlier times, particularly with respect to plead- 
ing, have been admitted by the numerous modifications where- 
with, as well before as since the time of Lord Mansfield, both 
the legislature and the courts of law have interfered to temper 
their severity. Nothing, indeed, could be so much calculated to 
produce among the public a feeling of disgust and dissatisfaction 
against the laws, as to find matters of litigation frequently put an 
end to without the slightest reference to the facts of the case, but 
solely and entirely on account of some technical flaw, some slip 
of the pen, some casual oversight of the judgment, committed in 
the course of a process of which the public in general can nei- 
ther comprehend the meaning, nor even perceive the necessity. 
And this the rather, that such cases are not only decided on 
grounds quite distinct from their merits, but almost invariably 
are decided against and in defiance of those merits ; because it is 
for the most part only the party who is conscious of the weakness 
of his cause in point of fact, that is anxious to avail himself of 
technical objections of law. It is obvious that this must occa- 
sionally happen under every system of law, and every mode of 
administering it; but surely it is the bounden duty of every 
legislator, and of every judge, to palliate, though he may not be 
able to remedy, the evil — to diminish the frequency of its occur- 
rence, though he cannot prevent it from ever occurring — to 
catch at every opportunity of discountenancing it — in short, to 



414 LORD MANSFIELD. 

use every effort towards securing the substance, though by the 
sacrifice of the shadow, of justice. 

Lord Mansfield, then, surely deserves comnnendation instead 
of censure, for making this, as he does, his constant object. Thus, 
where an attempt was made (Hart v. Weston, Burrow, 2586,) 
to impugn the validity of a writ, because it was inadvertently 
recited in the declaration as if it had been issued in vacation, 
the lawyer, we think, must have had more pedantry than sense 
who could have refused to agree with him that it was an odious 
objection, and an endeavour to make the practice of the court a 
means of eluding justice rather than obtaining it. He was, how- 
ever, by no means inclined to depart from the very strictest 
rules of law, whenever they could by possibility be made sub- 
servient to the administration of substantial equity and right. In 
most cases, where technical objections or mere formal impedi- 
ments stood in the way of justice, he did, indeed, openly express 
his wish that the merits should have a fair trial ; but this was 
brought about by such means as the practice of the court had 
long sanctioned. An example may be found during the first 
week he presided in the King's Bench, when a case of this de- 
scriptio^i was tried, and decided wholly on a point of form, but 
he afterwards left it to counsel to devise their own plan for bring- 
ing it a second time under the notice of the court, so that the 
real question in dispute might be discussed. So, too, in the case 
of the King v. Mayor of Carmarthen (Burrow, 293), where, a 
swearing-in under a mandamus having been inadvertently laid in 
the plea on a wrong day, the judge at Nisi Prius had refused to 
let the jury receive evidence of a swearing-in on a different day, 
and a new trial was moved for in the King's Bench, on the 
ground of misdirection, Lord Mansfield, conceiving the direction 
to be, in point of law, strictly correct, very properly refused to 
make the rule absolute ; but at the same time, in order that the 
merits might have a trial, he suggested to counsel that an appli- 
cation should be made to set aside the verdict, and award a re- 
pleader. It would be easy to make out a long list of similar 
cases, wherein he reconciled rigid law with true equity, and con- 
verted the forms of legal practice to their proper purpose and 
object, the administration of right. " General rules," he re- 
marked, on delivering final judgment in this very case, "are 



LORD MANSFIELD. 415 

wisely established for attaining justice with ease, certainty, and 
dispatch. But the great end of them being to do justice, the 
court are to see that it be really attained. This seems to be the 
true way to come at justice ; and what we ought therefore to do ; 
for the true text is ' boni judicis est ampliare justitiam,^ not 
*jurisdictionem,'' as it has been often cited. This is what I would 
wish to do, if we can do it." 

And this his favourite object of enlarging, as it were, the 
boundaries of justice, he had opportunities of achieving by other 
means besides his spirited interpretation and equitable adminis- 
tration of the laws already established. As no body of laws, 
however excellent and however copious, can possibly foresee or 
provide for the countless variety of circumstances that are made 
the occasion of litigation, every judge must of necessity be more 
or less frequently obliged to take upon himself, in some degree, 
the office of a legislator ; and this duty Lord Mansfield wai 
called upon to perform far oftener than any magistrate who has 
ever presided on the courts. The length of time during which 
he sat on the bench would of itself be sufficient to account for 
such a peculiarity as this in his career. But there were also 
other causes that increased it beyond all proportion to the mere 
difference in point of duration of judicial authority between him- 
self and other judges. During the latter half of the eighteenth 
century, the rapid growth and extension of our foreign com- 
merce gave birth to a host of novel sources of litigation con- 
nected, for the most part, with matters which had not only been 
entirely overlooked by the legislature, but had been very little 
brought before the notice of the courts, or when they had been 
referred to them, had been decided with reference not so much 
to any settled principles as merely to the facts of each particular 
case. Lord Mansfield treated them in a very different mode. 
" Within these thirty years," said Mr. Justice Buller, in giving 
judgment in the case of Lickbarrow v. Mason (2 T. R. 63), " the 
commercial law of this country has taken a very diffi^rent turn 
from what it did before. We find in Snee and Prescott (I At- 
kyns), that Lord Hardwicke himself was proceeding with great 
caution, not establishing any general principle, but decreeing on 
all the circumstances put together. Before that period, we find 
that, in courts of law, all the evidence in mercantile cases was 



416 LORD MANSFIELD. 

thrown together: they were left generally to a jury, and they 
produced no general principle. From that lime, we all know, 
the great study has been to find some certain general principle 
which shall be known to all mankind, not only to riile the par- 
ticular case then under consideration, but to serve as a guide for 
the future. Most of us have heard these principles staled, rea- 
soned upon, enlarged, and explained, till we have been lost in 
admiration at the strength and stretch of the understanding. And 
I should be very sorry to find myself under a necessity of dif- 
fering from any case upon this subject which has been decided 
by Lord Mansfield, who may be truly said to be the founder of 
the commercial law of this country." 

The fact that there were no precedents or authorities to con- 
trol the exercise of his judgment in this department of law, as 
it must add considerably to our admiration of the wisdom that 
dictated his decisions upon it, so it has also materially contri- 
buted to enhance their utility, and to widen the application of 
them. Not being here, as elsewhere, under the necessity of 
reasoning on principles which, though they still hold good their 
footing in Westminster Hall, are virtually obsolete elsewhere, 
and are totally at variance with the actual customs and exigen- 
cies of society; having no occasion, for instance, as in some 
real property cases, to frame a judgment at the close of the 
eighteenth century on the same grounds that Glanville might 
have done in the reign of Henry the Second, he was enabled to 
indulge without restraint his favourite wish of accommodating 
the administration of justice to the spirit and the wants of his 
own time. Among other obvious advantages which this has 
imparted to his decisions in mercantile cases, it is by no means 
a trifling one, that they are of equal authority in courts of law 
and in courts of equity. "During the fifteen years I have sat 
on this bench," said, on one occasion, the distinguished judge 
whose testimony we have just quoted (Tooke v. Hollingworth, 
5 T. R. 215), " I have never known any case which established 
a distinction between courts of equity and courts of law, on sub- 
jects of this kind. I have always thought it highly injurious to 
the public, that different rules should prevail in diflerent courts 
on the same mercantile case. My opinion has been uniform 
upon that subject. It sometimes, indeed, happens that in ques- 



LORD MANSFIELD. 417 

tions of real property courts of law find themselves fettered with 
rules from which they cannot depart, because they are fixed and 
established rules ; though equity may interpose, not to contra- 
dict, but to correct, the strict and rigid rules of law. But in 
mercantile cases, no distinction ought to prevail." Nor is it in 
English courts alone, whether of law or equity, that this unifor- 
mity subsists with respect to Lord Mansfield's decisions on 
matters of commercial jurisprudence. As they were invariably 
framed in conformity with those broad principles of justice and 
policy which, having received the unanimous assent and sanc- 
tion of all civilized communities, form the groundwork of what 
(for want of a more correct term) is called the law of nations, it 
may be safely affirmed, that there are very few tribunals in Eu- 
rope where they might not be quoted as authorities. 

To all those who are conversant with these judgments, it 
would be superfluous, and to those who are not so, impossible, 
(at least within such space as we could here aflford), to point out 
how much of their intrinsic merit, and of their extended appli- 
cation, is attributable to Lord Mansfield's knowledge of the civil 
law. This splendid monument of human wisdom was to him 
a well filled storehouse of reasoning, from which a ready supply 
of principles and of rules might always be drawn to guide him 
in the decision of ca^'es unprovided for by our own jurispru- 
dence. And it was not only in such cases as these that he de- 
rived advantage from it. There are very few departments of 
our own law on which some light may not be thrown by it, in 
the way of analogical illustration ; and with respect to very 
many, as he has frequently had occasion to show, it is of more 
direct application, being in fact the source from which they have 
been either partially or entirely deduced. The happy facility 
with which, in each of these points of view, he so often 
brought it to bear on the legal questions submitted to his notice, 
must excite the admiration of every one who is competent to 
appreciate the merits of a judge : that the same quality should 
ever have been made the ground of censure or invective by any 
one, would doubtless seem little less than incredible, but for the 
jealousy of the civil law notoriously prevalent among the vulgar 
of this country. This most unfounded prejudice, we might 
almost say superstition (and, like all other superstitions, it is the 



418 LORD MANSFIELD. 

offspring of folly and ignorance), has been turned to account 
by Junius, in a manner that proves the writer either to have 
been strongly imbued with it himself, or at least to have been 
perfectly conscious of its prevalence, and, consequently, well 
aware of the effect he might produce by humouring it. " In 
contempt or ignorance of the common law of England," he 
writes, addressing himself to Lord Mansfield, " you have made 
it your study to introduce into the court where you preside, 
maxims of jurisprudence unknown to Englishmen. The 
Roman code, the law of nations, and the opinion of foreign 
civilians, are your perpetual theme ; but who ever heard you 
mention Magna Charta, or the Bill of Rights, with approbation 
or respect? By such treacherous arts, the noble simplicity and 
free spirit of our Saxon laws were first corrupted. The Nor- 
man Conquest was not complete, until Norman lawyers had 
introduced their laws, and reduced slavery to a system." This 
is quite as well calculated to catch the attention of the mob of 
readers, and to excite the contempt of sensible men, as the 
charges so often repeated by the same powerful libeller against 
Lord Mansfield, that he was a Scotchman, that he had once 
drunk the health of King James, and that he had a brother who 
had been in the service of the Pretender. The insinuation, that 
the spirit of the civil law is incompatible with the spirit of free- 
dom, is, in truth, as admirably adapted to find favour with those 
who, having no knowledge of the subject, cannot detect the utter 
falsehood of it, as the assertion concerning the Saxon laws and 
the Norman lawyers to pass current with such as, exercising no 
reflection of their own, cannot at once detect it to be worse than 
irrelevant as connected with the matter under consideration, and 
do not instantly perceive that whatever principles, and maxims, 
and statutes, the Norman lawyers may have introduced, those 
very principles and maxims and statutes it is the duty of an 
English judge to interpret and to administer. But the accusa- 
tions of Junius cannot always bear, nor indeed were they origi- 
nally intended to meet, calm and impartial investigation. They 
were addressed to the passions much more than to the reason. 
They were levelled against men in power, at a time when any 
charge against men in power was sure to find abundance of willing 
believers in its truth ; at a period when there existed a predispo- 



LORD MANSFIELD. 419 

sition to condemn, that lent every advantage to the accuser ; in a 
word, during a season of political excitement, when the majority 
of the public never fail to honour at sight the most extravagant 
drafts upon their credulity, provided they be presented to them 
by the demagogues or the agitators to whom they may have for 
the time surrendered the use of their senses and their judgment. 
What first gave occasion to the direct attack of Junius upon 
Lord Mansfield, and certainly constituted the most weighty of 
all the accusations with which he was charged, was his mode of 
directing the juries, in the various prosecutions for libel which 
were instituted (1770) by the government against Woodfall, and 
the other persons concerned in the publication of the letters pre- 
viously written by the same author. The doctrine delivered in 
each of these cases, and in others of the like nature, was sub- 
stantially the same ; namely, that it was the province of tlie jury 
to decide, not on the legality or illegality of the writings alleged 
to be libellous, but merely on the fact of their publication, and 
on the meaning intended to be conveyed by the writer. In the 
two cases of The King v. Woodfall, which are reported in 
Lofl^t, 778, part of the Chief Justice's charge is thus worded : 
" The evidence is very clear ; Mr. Hardinge has rightly argued 
that you must see the author meant what was imputed to him. 
It is not that he is accurate as to dates and facts : you must see 
what ideas the author meant to convey, according to your sense 
of what he has written." Thus, the verdict, not guilty, would 
negative the fact of the defendant's having published a paper of 
the tenor and meaning set forth in the indictment ; and the ver- 
dict of guilty, on the other hand, would affirm both the fact of 
his having published the paper, and of its bearing, by the inten- 
tion of the writer, the meaning ascribed to it; the question as 
to the legality or illegality of that meaning (in other words, as 
to whether the paper was or was not a hbel) remaining a point 
of law to be determined by the court. That this doctrine was 
a highly dangerous one, and one that tended to undermine the 
great constitutional bulwark of the trial by jury, in a quarter 
where it aflfords the best barrier against the encroachments of 
arbitrary power, we certainly are very ready to admit ; but to 
infer therefrom, without any further evidence to warrant the 
supposition, that Lord Mansfield propounded it merely from an 



420 LORD MANSFIELD. 

anxiety to extend the authority of the crown, or (what some 
may think much the same thing) of the judges, is certainly un- 
just and unreasonable. Even had he been the original inventor 
of it, we should be fully justified in demanding some evidence 
to support the charge that he invented it for such a purpose. 
But this view of the law of libel was one that had been fre- 
quently taken by his predecessors on the bench, and had guided 
them in their administration of it; nor would it be a very diffi- 
cult matter to show that (whatever its effects) it is strictly recon- 
cileable with principle. Indeed, the fact that an act of Parliament 
Avas considered necessary to place the rights of a jury, in cases 
of libel, on the fooling they at present hold, was an acknowledg- 
ment on the part of the legislature that the doctrine acted upon 
by Lord Mansfield was so well established, that it could not be 
overruled without their interference. Doubtless, the thanks of 
every friend of liberty are due to Charles Fox for bringing for- 
ward the bill that did so overrule it; but Charles Fox acted in 
the capacity of a legislator, Lord Mansfield fulfilled the duties 
of a judge; Fox introduced a new law, Mansfield expounded 
the law as it existed, or at least as he understood it. Some au- 
thorities, it is true, leant the other way ; but the general current 
of precedents, particularly in later times, fully justified his doc- 
trine ; and though we do not mean to say iKat this was not a 
case which might have excused or justified a disregard of legal 
authority ; yet it must be admitted, that the same persons who 
blame him for ever having taken upon himself to depart from 
precedent, cannot, with much show of consistency, also censure 
him for adhering to it in this instance. 

Of the purity of his motives we think there can be no ques- 
tion. Thouorh he never enlisted himself amono^ the advocates of 
the popular party, he was equally far from being an uncompro- 
mising supporter of prerogative. To steer a middle course be- 
tween the opposite extremes, was in politics his favourite object. 
Except, however, in so much as every judge must necessarily 
bring to the bench the same cast of mind which leads him to 
adopt a particular line of conduct or of opinion elsewhere, he 
certainly never suffered political considerations of any kind to 
influence his judicial decisions. But so far was he from enter- 
taining in his own person, or endeavouring to encourage among 



LORD MANSFIELD. 421 

his colleagues, any feeling of subservience towards government, 
that it is to him we owe the earliest and most popular act of 
George the Third's reign, which entirely emancipated the judges 
from the control of the crown, and secured their independence in 
such a manner as to place them, as far as possible, beyond the 
reach of temptation to swerve from their duty. Even had he 
not been himself the author of this measure, the very fact of 
its having been adopted at all is quite sufficient to prove that no 
motives of self-interest could by possibility have had any undue 
influence over his conduct. Had he been only a puisne judge, 
it might have been said that he courted promotion. But he had 
already attained the summit of his ambition. He was Chief 
Justice of the King's Bench : the chancellorship he had more 
than once refused ; and the Crown had no preferment to offer, 
of which the prospect could have induced him to feel anxious 
about cultivating its favour. 

Were all these considerations to be entirely neglected, the 
general integrity and nobility of Lord Mansfield's character 
ought of itself to exonerate him from all suspicion of ever hav- 
ing introduced corruption into the seats of justice. A strong 
presumption, to say nothing more, that his opinions on the law 
of libel were the result of honest and sincere conviction is afforded 
by his anxiety to submit them to revisal, and even to correct 
them himself if it could be shown they were erroneous. This 
he frequently professed his readiness to do. We quote one 
instance out of several (Rex v. Woodfall, Burrow, 2668): " That 
the law, as to the subject matter of the verdict, is as I have 
stated, has been so often unanimously agreed by the whole court, 
upon every report I have made of a trial for libel, that it would 
be improper to make it a question now, in this place. Among 
those that concurred, the bar will recollect the dead and the liv- 
ing not now here. And we all again declare our opinion, that 
the direction is right and according to law. This direction, 
though often given with an express request from me, that if there 
was the least doubt they would move the court, has never been 
complained of in court. And yet, if it had been wrong, a new 
trial would have been of course. It is not now complained of." 

The occasion on which he thus expressed himself, was when 
the verdict of the jury, on the trial of Woodfall for having pub- 



i22 LORD MANSFIELD. 

lished Junius's letter to the King, was brought under the con- 
sideration of the Court of King's Bench (November 20, 1770), 
in consequence of two cross motions, the one made on behalf of 
the crown, the other of the defendants. The jury, after delibe- 
rating for many hours, had been conveyed in hackney coaches 
to Lord Mansfield's house in Bloomsbury Square (the objection 
of its being out of the county being cured by consent), and had 
there delivered to his Lordship their verdict, that the defendant 
was guilty of printing and publishing only. Nothing further 
had passed at the time, and the verdict had been entered word 
for word on the record. Upon this the defendant's counsel 
moved, either that it should be considered tantamount to an ac- 
quittal, or that at all events a new venire should be awarded, on 
the ground that it did not pronounce him guilty of all the charges 
contained in the information. The counsel for the crown, on 
the other hand, applied for a rule to show cause why the verdict 
should not be entered according to the legal import of the finding 
of the jury. The opinion of the court, as delivered by Lord 
Mansfield, was in favour of a venire de novo. It is well worth 
while to quote another passage from the report, to show how 
plainly he acknowledged the right of the jury to decide on the 
meaning and intent of a libel, that is, whether or not it corre- 
sponded with the meaning and intent imputed to it in the decla- 
ration or indictment. " If," he said, " by * only,' they meant to 
say they did not find the meaning put upon the paper by the in- 
formation, they should have acquitted the defendant. If they 
had expressed this to be their meaning, the verdict would have 
been inconsistent and repugnant ; for they ought not to find the 
defendant guilty, unless they find the meaning put upon the paper 
by the information: and judgment of acquittal ought to have 
been entered up. If they had expressed their meaning in any 
of the other ways, the verdict would not have been afi^ected ; 
and judgment ought to be entered upon it. It is impossible to 
say, with certainty, what the jury really did mean. Probably 
they had different meanings. If they could possibly mean that 
which, if expressed, would acquit the defendant, he ought not 
to be concluded by this verdict. It is possible some of them 
might mean not to find the whole sense and explanation put 
upon the paper by the innuendos in the information. If a doubt 



LORD MANSFIELD. 42S 

arises from an ambiguous and unusual word in the verdict, the 
court ought to lean in favour of a venire de novo. We are 
under the less difficulty, because, in favour of a defendant, though 
the verdict be full, the court may grant a new trial. And we 
are of opinion, upon the whole of the case, that there should be 
a venire de novo.^^ 

With this mode of disposing of the case one would think it 
impossible to find fault. And yet even for this decision Lord 
Mansfield was abundantly visited with the scurrility of the popu- 
lar press, which, ever since the institution of the proceedings 
against Wilkes, some years previous (1764), had plentifully 
poured out the vials of its wrath against the Chief Justice, for 
the part he had taken in them. Abuse, calumny, and invective 
had been all along doing their utmost to impugn the justice of 
his decisions, to misrepresent his motives, in short, to blacken in 
every way his character as a judge. Every topic of accusation 
dwelt on by Junius, and many more to boot, had been previously 
expatiated upon, with a degree of rancour and unfairness not 
often to be met with in the annals even of political hostility; and 
indeed Junius himself professed to do nothing more than collect, 
as he phrases it, these scattered sweets, " till their united virtue 
should torture the sense." In the opinion of men of sense and 
calm reflection, these aspersions on such a character as that of 
Mansfield were like nothing more than the tinkling of Priam's 
feeble weapon against the shield of Pyrrhus. But with the mul- 
titude they had their effect. Wilkes and Liberty, (or as his 
lordship's old schoolfellow. Bishop Newton, chooses to expound 
it, " in plain English, the devil and licentiousness") had set the 
whole nation in a ferment ; and it fell to the lot of very few to 
preserve, amid the universal turbulence and excitement of party 
feeling, any thing like cool consideration or dispassionate judg- 
ment. Under these circumstances, it is hardly surprising that 
Lord Mansfield should, for some years of his life, have been in 
reality, as his enemies did not fail to remind him, the most un- 
popular man in England. How far the fact of his having in- 
curred so much odium is a proof of his having deserved it, will 
be best understood by those who have been in the habit of ob- 
serving by what sort of impulses the veerings of the weather- 
cock of popularity are most commonly guided. We shall 



424 LORD MANSFIELD. 

presently have an opportunity of showing what degree of im 
portance he himself attached to tliem. 

After the records had been made up for trial in the two in- 
formations filed by the government against Wilkes, for the libels 
contained in No. 45 of the North Briton, and the Essay on 
Woman, an application had been made to the court on the part 
of the crown, for leave to amend them, by striking out the 
word 'purport,' and substituting the word ' lenor' in both the 
informations. A summons was accordingly granted, in the usual 
way, and no cause being shown why the alteration should not 
be allowed, it was made as a matter of course. Wilkes not ap- 
pearing at the trial, and no objection being offered by his coun- 
sel in respect of this amendment of the records, he was found 
guilty in each cause. Writs of capias were then issued, the 
usual forms of proclamations and exigents were gone through, 
and the defendant, who still remained abroad, was duly outlawed. 
Somewhat more than four years afterwards, (20th April, 1768,) 
he voluntarily made his appearance in the Court of King's 
Bench, objected to the validity of the verdicts on the ground of 
alterations in the record, assigned errors in the outlawries, and 
demanded to be admitted to bail : the Attorney-General, on the 
other hand, moved that he should be committed to custody. The 
Court refused to grant either application, as the defendant had 
not been regularly brought before it ; and it was decided that the 
question as to the legality or illegality of the outlawry must be 
set at rest, before any proceeding could be taken upon the judg- 
ments. The Attorney-General then granted his fiat for writs of 
error on the outlawries, and Wilkes, having surrendered to the 
sheriff of Middlesex, was committed, on the motion of the At- 
torney-General, to the custody of the marshal. The errors were 
finally argued on the eighth of June following, and Lord Mans- 
field, at the close of a beautiful and luminous exposition of the 
law on the subject, delivered it as his opinion, in which the 
other judges concurred, that although the errors assigned could 
not be allowed, yet as the court found the outlawries to be defi- 
cient in point of form, they should be reversed. It was in the 
course of this speech from the bench, that he thought proper to 
allude to the menaces by which it had been attempted to frighten 
him into a decision, which Wilkes and his party had rather 



LORD MANSFIELD. 425 

hoped than anlicipaled. The annals of oratory can boast few 
more splendid specimens of calm and dignified eloquence : — 

*' These are the errors which have been objected; and this 
the manner and form in whicli they are assigned. For the rea- 
sons I have given, I cannot allow any of them. It was our duty, 
as well as our inclination, sedulously to consider whether upon 
any other ground, or in any other light, we could find an in- 
formality which we might allow with satisfaction to our own 
minds, and avow to the world. But here let me pause ! — It is 
fit to take some notice of the various terrors being held out ; the 
numerous crowds which have attended and now attend in and 
about the hall, out of all reach of hearing what passes in court; 
and the tumults which, in other places, have shamefully insulted 
all order and government. iVudacious addresses in print dictate 
to us, from those they call the people, the judgment to be given 
now, and afterwards upon the conviction. Reasons of policy are 
urged, from danger to the kingdom by commotions and general 
confusion. 

" Give me leave to take the opportunity of this great and 
respectable audience, to let the whole world know, all such 
attempts are vain. Unless M'e have been able to find an error 
which will bear us out to reverse the outlawry, it must be 
affirmed. The constilutron does not allow reasons of state to 
influence our judgments. God forbid it should ! We must not 
regard political consequences, how formidable soever they might 
be; if rebellion was the certain consequence, we are bound to 
say 'Fiat justitia, ruat coelum.' The constitution trusts the 
king with reasons of state and policy ; he may stop prosecutions ; 
he may pardon olfences ; it is his to judge whether the law or 
the criminal should yield. "We have no election. None of us 
encouraged or approved the commission of either of the crimes 
of which the defendant is convicted : none of'us had any hand in 
his being prosecuted. As to myself, I took no part (in another 
place) in the addresses for that prosecution. We did not advise 
or assist the defendant to fly from justice; it was his own act, 
and he must take the consequences. None of us have been con- 
sulted, or had anything to do with the present prosecution. It 
is not in our power to stop it; it was not in our power to bring 
it on. We cannot pardon. We are to say what we take the 

28 



426 LORD MANSFIELD. 

law to be; if we do not speak our real opinions, we prevaricate 
with God and our own consciences. 

I pass over many anonymous letters I have received. Those 
in print are public; and some of them have been brought judi- 
cially before the court. Whoever the writers are, they take the 
■wrong way. I will do my duty unawed. What am I to fear? 
Tiiat mendax infamia from the press, which daily coins false 
facts and false motives ? The lies of calumny carry no terror to 
me. I trust that my temper of mind, and the colour and conduct 
of my life, have given me a suit of armour against these arrows. 
If, during this king's reign, I have ever supported his govern- 
ment, and assisted his measures, I have done it without any other 
reward than the consciousness of doing what I thought right. If 
I have ever opposed, I have done it upon the points themselves; 
without mixing in party or faction, and without any collateral 
views. I honour the king, and respect the people ; but many 
things acquired by the favour of either, are, in my account, ob- 
jects not worth ambition. I wish popularity; but it is that 
popularity which follows, not that which is run after ; it is that 
popularity which, sooner or later, never fails to do justice to the 
pursuit of noble ends by noble means. I will not do that which 
my conscience tells me is wrong upon this occasion, to gain the 
huzzas of thousands, or the daily praise of all the papers which 
come from the press: I will not avoid doing what I think is 
right, though it should draw on me the whole artillery of libels; 
all that falsehood and malice can invent, or the credulity of a de- 
luded populace can swallow. I can say, with a great magistrate, 
upon an occasion and under circumstances not unlike, ' Ego hoc 
animo semper fui, ut invidiam virtute partam, gloriam, non 
invidiam putarem.' " 

" The threats go further than abuse : personal violence is 
denounced. I do not believe it ; it is not the genius of the worst 
of men of this country, in the worst of times. But I have set 
my mind at rest. The last end that can happen to any man 
never comes too soon, if he falls in support of the law and liberty 
of his country (for liberty is synonymous to law and government). 
Such a shock, too, might be productive of public good ; it might 
awake the better part of the kingdom out of that lethargy which 
seems to have benumbed them ; and bring the mad part back 



LORD MANSFIELD. 427 

to their senses, as men intoxicated are sometimes stunned into 
sobriety. 

" Once for all, let it be understood, that no endeavours of this 
kind will influence any man who at present sits here. If they 
had any effect, it would be contrary to their intent ; leaning 
against their impression, might give a bias the other way. But 
I hope, and I know, that I have fortitude enough to resist even 
that weakness. No libels, no threats, nothing that has happened, 
nothing that can happen, will weigh a feather against allowing 
the defendant, upon this and every other question, not only the 
whole advantage he is entitled to from substantial law and justice, 
but every benefit from the most critical nicety of form, which 
any other defendant could claim under tlie like objection. The 
only effect I feel, is an anxiety to be able to explain the grounds 
upon which we proceed ; so as to satisfy all mankind that a 
flaw of form given way to in this case, could not have been got 
over in any other." 

As to the alteration made by Lord Mansfield in the record, for 
which so much senseless clamour had been raised against him, 
it was afterwards clearly shown by the court, when the validity 
of the judgments in the two informations was disputed, that no- 
thing had been done in this respect which was not clearly war- 
ranted, as well by abundance of written precedents, as by the 
traditionary recollections of practice preserved among the oflicers 
of the Court. It was, moreover, explained that Wilkes could 
not possibly have been, in any way, injured by the allowance of 
the amendment ; because, had the advisers of the crown consi- 
dered the records imperfect as they originally stood, they would 
have been at liberty to file fresh informations, the only effect of 
which must have been to burden the defendant with additional 
expense. Other objections had been taken against the judg- 
ments, but they were equally overruled ; and the idol of the mob 
was accordingly sentenced to fine and imprisonment. An appeal 
to the House of Lords was afterwards tried, but without effect. 
Lord Camden and the rest of the judges were unanimous in 
their opinion as to all the points whereon error was assigned ; 
and the decision of the King's Bench was accordingly aflirmed. 

It was not always that the opinions of Lord Camden on legal 



428 LORD MANSFIELD. 

subjects coincided with those of his illustrious contemporary. 
His elaborate argument in the case of Doe d. llindson v. Kersey, 
wherein he overruled the decision relative to the construction of 
the Statute of Wills, given by Lord Mansfield in Wyndhara v. 
Chetvvynd, will probably occur to the recollection of many of 
our readers. The difTerence of their sentiments with respect to 
the power of juries in cases of libel, is no doubt known to all; 
it stands on record in many pages of the Parliamentary History, 
where the Chancellor appears more than once as an impugner, 
not only of the doctrine of the Chief Justice, but of his motives 
for propounding and upholding it. In the strain of accusation 
he always thought fit to assume when this topic was brought 
forward in the House of Lords, he was constantly seconded by 
his ally Lord Chatham. As the ties of party which united these 
two great men were drawn closer by those of private friendship, 
so the political hostility which both professed against Lord 
Mansfield seems to have derived additional poignancy from a 
common feeling of personal dislike. We have already intimated 
our opinion of the probability, that jealousy may have done much 
towards engendering this feeling in the mind of Pitt; and 
although the fact, that a similar one grew up in the breast of Lord 
Camden, may be sufficiently accounted for by the facility with 
which we often involuntarily adopt the very prejudices of our 
friends, yet this same infirmity of jealousy is one from which 
even the noblest natures are so seldom entirely exempt, that we 
are warranted in suggesting at least the possibility of its having 
exercised some influence over the one as well as the other. 
Many more causes, no doubt, may have had their share, either 
in kindling the first sparks of such sentiments of animosity, or 
afterwards fanning them into flame. Giving credit to both Chat- 
ham and Camden for a sincere devotion to the political opinions 
they professed, we consider it far from unlikely that they may 
have fallen into the very common error, of supposing that all 
those who differed from them did so from unworthy motives, 
and not from honest conviction. That most persons who interest 
themselves warmly in politics, in times of violent party disputes, 
do adopt this sort of prejudice against their opponents, is likely, 
we think, to be contested by no one who has accustomed him- 



I 



LORD MANSFIELD. 429 

self to mark the tone of the public press, and even of private 
conversation, during such seasons, when Tories appear to look 
upon Whigs as factious promoters of sedition, while Whigs are 
apt to regard Tories as litde better than unflinching advocates 
and supporters of downright despotism. We by no means mean 
to say it is probable that men like Chatham or Camden could 
ever go such lengths as this ; but as we have no right to suppose 
them altogether superior to a weakness so generally prevalent, 
we certainly do think it likely that something of it may have 
contributed to bias their judgments, with respect to the principles 
and conduct of one who generally thought and acted in opposi- 
tion to them. 

These causes, and perhaps many others (for the motives of 
every man's thoughts and actions are mixed and complicated in 
a wonderful degree), probably combined to generate and to foster 
the repugnance of these two eminent men against Lord Mans- 
field, and will account for the general asperity of their tone when- 
ever allusion was made to his conduct. From what we have 
already said of the timidity of his character, it may be supposed 
that, with every requisite of an orator except confidence, he did 
not always appear to advantage on these occasions. Sometimes, 
indeed, he rose manifestly superior to his antagonists, and not 
only vindicated himself with success, but ventured to leave the 
defensive, and attack in his turn : as, for example, when he dwelt 
upon the gross ignorance displayed in the assertion of Lord 
Chatham, that an action might be brought against the House for 
the expulsion of Wilkes, and deduced from it the very plausible 
inference, that not much reliance ought to be placed on his lord- 
ship's legal opinions. But for the most part, he endured too 
patiently their tone of superiority, or even of scornful sarcasm ; 
and instead of replying in the same strain, meeting invective with 
invective, and defiance with defiance, he would often plead not 
guilty to their accusations, and exculpate himself from the charges 
made against him, with reasoning and language, indeed, that 
might have made the reputation of an advocate at the bar defend- 
ing a client arraigned by the laws, but had far less effect in the 
mouth of a peer of Parliament rebutting, in the presence of his 
fellow peers, the aspersions cast on himself. This (if the ac- 
counts given in the Parliamentary History be correct) was fully 



430 LORD MANSFIELD. 

exemplified during some of ilie debates in which his opinions on 
subjects of constitutional law, and particularly his charges to 
juries in cases of libel, were visited with the censure of his op- 
ponents. After the House of Lords had refused to listen to Lord 
Lansdowne's proposition for the institution of an inquiry into the 
state of the courts, and the administration of justice, and the 
House of Commons had negatived, by a majority of more than 
two to one, a similar motion brought forward by Serjeant Glynn, 
Lord Mansfield thought fit to summon the Peers (7th Dec. 1770), 
and inform them that he had deposited with the clerk of the 
House a copy of the judgment given by the Court of King's 
Bench in the case of The King v. Woodfall, in order that they 
might have an opportunity of reading or copying it. This was 
in some measure provoking an inquiry, and showing that he 
thought he had nothing to fear from the result of it. The mode 
of proceeding was, indeed, much less direct than it might have 
been ; and the House certainly had reason to be disappointed in 
their expectation of what was to ensue after they were thus 
specially assembled, when they found that their attendance had 
been required merely to inform them they could procure a sight 
of a report which had previously been the round of the news- 
papers. This course certainly was not the most manly or dig- 
nified one,that might have been adopted ; but had the design of 
bringing on the discussion been plainly manifested and boldly 
persisted in, the mode of doing so would have been immaterial. 
However, if he had originally conceived such a design, he even- 
tually wanted the resolution to carry it into efl!ect. He refused, 
at the time, to have the paper entered on the Journals ; and a 
few days afterwards (December 11th), when Lord Camden an- 
nounced his intention of taking up the gauntlet he had thrown 
down, and boldly proclaimed his readiness to maintain that the 
doctrine of the Chief Justice was contrary to the law of the land, 
Lord Mansfield, instead of accepting the challenge, evidently 
shrank from the encounter. Instead of affording every facility 
in his power for bringing on the investigation with despatch, his 
object evidently was to procrastinate or prevent the discussion. 
With much difficulty a promise was drawn from him, that the 
matter should not be suffered to drop ; but on the Duke of Rich- 
mond's congratulating the House that he had thus pledged him- 



LORD MANSFIELD. 431 

self, he again rose, disclaimed any thing like a pledge, and merely 
said that he intended to take a future opportunity of giving his 
opinion. He was pressed to name a day, but even this he 
declined ; and as we find no further notice of the subject, it is to 
be presumed no debate afterwards took place upon it. 

We mention these circumstances as they are related in the 
Parliamentary History (vol. 16), because in the first place, being 
mete matters of fact, they are not so liable as matters of doc- 
trine and opinion to the suspicion of being either wilfully or un- 
designedly misrepresented by the writers who have recorded 
them : and secondly, because they agree so well with what we 
know from other sources of Lord Mansfield's timidity and inde- 
cision, that they carry with them internal evidence of probability. 
It is right, however, to mention, that a great majority of the 
periodical publications which have furnished most of the ma- 
terials of this compilation, were enlisted in the cause of the 
party opposed to that of which Lord Mansfield was an adherent. 
There is, therefore, some probability that (considering the im- 
perfections of the system of parliamentary reporting at that time, 
when no publication professed to follow every speaker closely 
through the debates, and the aid of imagination was often called 
to fill up the blanks left by memory) some of the writers uncon- 
sciously, and others by design, may have endeavoured to throw 
the weight of argument into the scale of the party whose opin- 
ions they themselves espoused. An example of this may be 
found in the case of Lord Mansfield himself, on that memorable 
occasion when Lord Chatham and Lord Camden, in general the 
champions of popular privileges, undertook (being at the time 
ministers) to defend the cause of arbitrary prerogative; and the 
Chief Justice, who was usually considered a staunch supporter 
of the crown, ably combated its right to entrench on the privi- 
leges of Parliament, by issuing proclamations. The discussion 
arose on the proposition of the bill of indemnity (Dec. 1766) 
for those who had been concerned in advising the measure of 
the embargo laid by the sole authority of the king, during the 
recess, on the exportation of wheat. The circumstances will 
probably be in the recollection of many of our readers, from the 
fact of their having been dwelt on at some length by Mr. Can- 
ning, when, anticipating the necessity of some similar restric- 



432 LORD MANSFIELD. 

lions, he adopted the more constitutional course of applying to 
Parliament beforehand, for authority to impose them. The 
speech on the suspending and dispensing prerogative (as it is 
entitled) which was printed in Almon's Register as the report of 
what had been delivered by Lord Mansfield, contains, we are 
assured by one who was present at the debate, more than three 
times as much matter as the speech he actually did make. It 
was, in fact, a digest of all the principal arguments that had been 
employed on the same side of the question. Now, if much 
Avas intentionally added to the record of what he was supposed 
to have spoken on the popular side, it may be presumed that, on 
the other hand, something was occasionally taken away of the 
reasoning with which he supported opinions or measures of a 
different tendency. We have, therefore, cause to mistrust even 
the good faith of some of the reporters of that time. Their 
opportunities of gaining full and correct information were not 
always very great ; and when they did contrive to obtain genu- 
ine accounts, they were not always disposed to impart them 
unalloyed. 

We can only repeat our regret that nothing but so imperfect 
and meagre a record should exist of those powers of eloquence, 
which for so many years astonished and delighted both Houses 
of Parliament. Some few of the speeches we know to be 
authentic, as, for instance, that celebrated one in which he sup- 
ported (2d Feb, 1766) the right to tax the xAmerican colonies, in 
answer to Lord Camden, who had denied it: and that on the 
appeal of the dissenter Evans, which we shall presently mention 
more particularly. Both of these were revised by himself, and 
made public with his sanction. The speech also (8th May, 
1770) against the exemption of peers' servants from arrest, seems 
to have been touched either by his own hand, or by that of no 
ordinary reporter. But these specimens may be said to give us 
a glimpse rather than a view of his talent as a parliamentary 
debater. A much better idea may be formed of his judicial 
oratory, from the specimens of it which have been preserved in 
the reports of Burrow, Wilson, Lofft, Cowper, Douglas, and 
Durnford and East, particularly the first. Sir James Burrow 
was not in the habit of taking short-hand notes in court, and he 
professes to give rather the substance than the exact words of 



LORD MANSFIELD. 433 

what was spoken by the Chief Justice ; but Lord Mansfield, it 
is well known, looked over and corrected the greater part of his 
proofs before they were published, so that if this work does not 
contain all he actually said, it at least conveys his arguments as 
nearly as possible in his own language. The eloquent passage 
we have already transcribed from the judgment in Wilkes's case, 
bears evident marks of having been carefully revised by the 
orator himself; and there are several others that carry with them 
the same stamp of authenticity. Even these, however, convey 
an inadequate idea of the peculiarities of his style as a speaker. 
In common with many eminent orators, he often disregarded the 
niceties of grammatical accuracy. The construction of his 
sentences, too, was frequently what in writing might have been 
called slovenly, abounding in parentheses and inversions. But 
such was the consummate art with which he modulated his voice, 
that by its inflexions the exact bearing and relation of every 
member of a long sentence was distinctly marked ; so that pas- 
sages which on paper would have appeared intricate and obscure, 
left on the mind of those who heard them from the lips of Lord 
Mansfield, a clear and vivid impression of their meaning. In- 
deed, perfect clearness and intelligibility were the leading charac- 
teristics of his speeches, notwithstanding these peculiarities (we 
will not call them defects), partly, perhaps, in consequence of 
them ; for they imparted to what he said a sort of colloquial air, 
which sometimes has more effect than any particular forms of 
language, in enabling an auditory to catch a just apprehension 
of the sense intended to be conveyed. 

This manner he most commonly adopted when delivering his 
opinions on obscure or difficult questioiis of law, the intricacies 
of which he unravelled with a facility that not only showed how 
fully he himself was master of the subject, but materially aided 
his hearers in comprehending it. In Parliament, he could soar 
into a higher region of eloquence ; and when the occasion called 
for it in court, he never failed to rise to the level of his matter. 
We may instance the different opportunities afforded him while 
he sat on the bench, of exposing his views on the subject of 
religious toleration. Such, among others, was the case of the 
Catholic priest, AVebb, who was prosecuted at the suit of a 



434 LORD MANSFIELD. 

common informer, for saying mass. The penal statutes which 
had disgraced the reign of King William were still in force, and 
the judge had no alternative but to obey them : but, with very 
justifiable latitude of interpretation, he contrived to reconcile the 
performance of this duty with strict adherence to his own prin- 
ciple of troubling no man for conscience' sake, by explaining to 
the jury, that the reasons of policy which produced the acts in 
question had ceased to exist ; that the Pope no longer possessed 
the power he then had, or was supposed to have ; that the in- 
fluence of the Jesuits had decreased still more ; and that even 
during the reign of William the Third, when the penal laws 
were enacted, the legislature had no intention of putting them in 
force, unless some urgent necessity might call for the execution 
of them. This charge to the jury is printed at length, from the 
notes of a short-hand writer, in Barnard's Life of Dr. Challoner. 
Another case, which occurred not long before that of Webb 
(1767), furnished him with an occasion of upholding the same 
great principles of religious liberty in the House of Lords. 
This was the case of Evans, a dissenter, who had been called 
upon to serve the office of sheriff in the city of London, and had 
refused to do so, because he could not conscientiously submit to 
the religious test required by the corporation. For this refusal 
he was subjected, as a matter of course, to the usual fine, which, 
however, he determined not to pay. From the decision of the 
Chamberlain's court, he appealed to the court of Hustings, and 
finding no redress there, he carried his cause before the Dele- 
gates, who decided in his favour. A writ of error was after- 
wards brought in the House of Lords, and it was then that Lord 
Mansfield had an opportunity of expressing his sentiments on the 
particular question before the House, and generally on the broad 
principles of toleration, by which he contended that the decision 
of it ought to be governed. The masterly speech he delivered 
has fortunately been preserved to us in a much more perfect 
state than any other of his parliamentary discourses. Dr. Fur- 
neaux, a man of much reputation among the dissenters, was 
present throughout the whole discussion, and took copious 
notes of all that passed : he submitted the draft of Lord Mans- 
field's speech to the orator himself for revisal ; and his Lord- 



LORD MANSFIELD. 435 

ship, after correcting and retouching it, authorized him to publish 
it as an authentic report. 

In accordance with the principles of religious toleration, of 
which, both on the bench and in Parliament, Lord Mansfield 
thus always professed himself the advocate, he was, of course, 
amongst the supporters of the bill passed in 18 Geo. 3, for the 
removal of a portion of the disabilities imposed on the Catholics 
by the too famous "act for preventing the growth of popery," 
11 & 12 W. 3. He was not immediately concerned in bringing 
forward the bill, which originated in the Commons : and as it 
met with very little opposition in either house, he had no oppor- 
tunity, on this occasion, of signalizing his zeal for the cause of 
religious liberty. But his sentiments on the subject had long 
been well known ; and he was, accordingly, one of the many 
marked out for the vengeance of the ' no popery' mob. Friday, 
the 2d of June, 1780, witnessed the beginning of those disgrace- 
ful outrages which, for a whole week, filled the inhabitants of 
London with consternation and dismay. On that day the 
wretched leader of the faction. Lord George Gordon, proceeded 
to the House of Commons for the purpose of petitioning, as he 
chose to call it, for the repeal of the obnoxious act. In pursu- 
ance of his real design, which was to extort by intimidation what 
he knew there was little chance of obtaining by legal means, he 
had previously given out that he would not proceed thither un- 
less he found full twenty thousand persons assembled to accom- 
pany him. A greater number had congregated together; and the 
government, though fully warned, having neglected to take rea- 
sonable precaution against the disturbances that could not but be 
anticipated, the fury of the lawless multitudes was checked with 
nothing that deserved the name of opposition. The obnoxious 
members of either house met with little mercy at their hands. 
As they drove down to Westminster, many of them were dragged 
out of their carriages, pelted, hustled, and otherwise maltreated. 
The equipage of Lord Mansfield's nephew. Lord Stormont, who 
was at that time Secretary of State, was literally knocked to 
pieces by the mob, and he remained nearly half an hour in their 
power, when they were prevailed upon to let him retire. The 
windows of Lord Mansfield's own carriage were smashed with 
stones, the pannels stove in, and he himself had great difficulty 



436 LORD MANSFIELD. 

in making his way into tlie lobby of the House of Lords, before 
they could proceed to wreak their utmost rage on his person. 
The Chancellor, Lord Thurlow, not being jjresent, the duties of 
Speaker devolved upon him ; and he remained in his place wliile 
the rest of the peers were contriving, each for himself, to make 
good their departure under the cover of darkness and disguises. 
It certainly redounds little to the credit of these noble lords, that 
their venerable president, then in his seventy-sixth year, should 
have been thus at length left entirely alone, and without any 
protection but such as his own servants, or the officers of the 
House, could afTord him. The dangers that threatened him on 
his return, he luckily contrived to evade. But he was not long 
left unmolested. 

After four whole days more of pillage, havoc, and devastation, 
on the evening of the following Tuesday (June 7th), an immense 
body of the mob took their way towards his house in Blooms- 
bury Square, with the avowed design of burning it to the ground. 
This intention had been made so public, that Lord Mansfield 
had time to take measures for thwarting the accomplishment of it ; 
and had he possessed that firmness of character which nature had 
unfortunately denied him, there is little doubt but he might have 
succeeded in repelling the meditated attack, or even in prevent- 
ing it from being attempted. At least his neighbour. Lord Thur- 
low, who was nearly as much the object of popular resentment 
as himself, contrived effectually to intimidate the rioters, by 
making a stout show of resistance at his house in Great Or- 
mond Street, though provided with no greater force than a Ser- 
jeant's guard of soldiers. Lord Mansfield, in his dread of 
consequences, resolutely persisted in his refusal to post the mili- 
tary in the same manner. A detachment of the guards was sent 
for by Sir John Hawkins, who, with two other police magis- 
trates, had hastened to the spot on the first intimation of the 
approaching danger, but no persuasion could induce Lord Mans- 
field to have them stationed beneath his own roof. By his 
desire they were marched to the vestry room of St. George's 
Church in Hart Street; and from that distance, had their num- 
bers been trebled, there was little chance of their being able to 
make their way through the dense phalanx of the mob in time 



LORD MANSFIELD. 437 

to afford any effectual resistance against an attack upon a house 
in Bloomsbury Square. They had not long been dispatched to 
this post, when the shouts of the advancing multitude were 
heard. Many persons had previously assembled in the square, 
to witness the spectacle of the threatened conflagration. The 
incendiaries did not keep them long in expectation. The front 
entrance of the house was instantly forced, and Lord Mansfield 
and his lady had barely lime to save themselves by a precipitate 
retreat through a back door, before tlie leaders of the mob were 
seen at the upper windows, tearing down and throwing below 
curtains, hangings, pictures, books, in short every thing they 
could lay their hands on likely to serve as fuel for the burning. 
So intent were these ruffians on their work of destruction, that 
no time was lost in pillaging ; and one of them, it is said, by way 
of setting an example against any such digression from their 
main object, threw ip*G the pile which was already blazing un- 
derneath a vziluable piece of plate, and a large sum of money in 
gold. In a very short time the whole building was enveloped in 
flames : and as no attempt was or could be made to arrest their 
progress, long before morning nothing of it w^as left standing but 
the bare and blackened skeleton of the walls. 

The loss thus sustained by Lord Mansfield must have been 
very considerable, even leaving out of the calculation all that to 
himself must have had a value entirely beyond any pecuniary 
estimate. The house itself, the furniture, the paintings, all were 
of a kind befitting the establishment of a wealthy English peer; 
and all this was destroyed. This, however, money might have 
replaced : but no sums could restore the cherished memorials of 
early friendship with the great and the illustrious — the volumes 
inscribed to him by Pope or by Bolingbroke; the remarks noted 
down on the margin of others in the hand-writing of the poet or 
the statesman ; nor the records of his own thoughts during the 
greater part of a life spent in constant intercourse and collision 
with the learned, the witty, and the wise: — 

*' And Murray sighs o'er Pope and Swift, 
And many a treasure more, 
The well-judged purchase and the gift, 
That grac'd his letter'd store. 



438 LORD MANSFIELD. 

Their pages mangled, burnt, and torn, 

Their loss was his alone; 
IJut ages yet to come shall mourn, 

The burning of his own." 

Independently of such precious relics as these, there are asso- 
ciations connected with the books of every man who is fond of 
literature, which make him look upon them with a feeling 
almost of afTection. Surrounded by them, he feels himself in the 
presence of old friends ; he recollects the date of his first ac- 
quaintance with each individual volume; — what motive first led 
him.to.make himself master of it; — what new train of thoughts 
or of emotions was awakened by the perusal of it ; and merely 
by casting his eye along the backs of them as they stand ranged 
on the shelves, he can read the history of his own mind^ and of 
his own actions which that mind has governed, perhaps almost 
from the earliest infancy of his reason. We have no fear of sub- 
jecting ourselves to the ridicule of those who have experienced 
such feelings, and can appreciate the force, as well as the deli- 
cacy of such associations, when we say that no other than the 
very identical volumes that have first created them can call them 
up again in the imagination with any thing like the same vivid- 
ness or reality. We may purchase the self-same works — better 
editions of them, in handsomer bindings ; but the fine thread has 
been snapped ; the charm is dissolved. This will doubtless ap- 
pear very extravagant and absurd to those who consider books 
as nothing more than pretty furniture for the walls, and order 
them as they would hangings or papering — by the yard. To 
such persons we must despair of conveying any notion of the 
pang the destruction of his library must have inflicted on Lord 
Mansfield. " I speak not from books," he once said in the 
• House of Peers, after this event, "for books I have none." 
Those only who know what it is to feel a warm attachment, we 
had almost said friendship, for their books, can appreciate the 
full pathos of this simple sentence. 

It was not till a week after the conflagration, that Lord Mans- 
field again appeared in his place in the King's Bench. A note 
in Douglas's Reports informs us, that a reverential silence, much 
more expressive than any set speech of condolence could have 



LORD MANSFIELD. 439 

been, was the greeting given him by the bar, on his first entry 
into court. This was on the 14th of June. In the course of 
the following month, a vote of the House of Commons gave him 
an opportunity of showing that, however great his loss might 
be, he was above receiving any indemnification for it out of the 
pubhc money.* And here we may remark, in further disproof 
of the insinuations we have already alluded to, as to his support- 
ing the measures of government from corrupt or interested mo- 
tives, that he never, during the whole course of his life, took 
advantage of his influence with ministers to make himself or 
any of his family or dependants a charge to the nation. The 
only person, as he himself once stated in the House of Lords, 
for whom he ever solicited the slightest provision out of the 
funds of the public, was the unfortunate Lady Jane Douglas, 
who had no claims to interest him in her behalf, but her distress. 
For her he obtained a pension of ^150 ; and assuredly, if the 
admitted privilege of the crown to provide by such means against 
the utter decay and ruin of ancient families had never been 

* The following is a copy of the letter sent by him to Mr. Keene the 
government surveyor, who had been directed to apply to him for an 
estimate of the amount of his loss : — 

2lst August, 1780. 

"Sir — I am extremely obliged to you for your attention in calling 
upon me before I went the circuit, and last Friday again since ray re- 
turn, and in now communicating to me by your letter of Saturday the 
unanimous vote of the House of Commons, and the reference of the 
Lords of the Treasury of the 18th July to your board, desiring me 
to enable you to comply with the order of the Lords of the Treasury ; 
and so far as I am concerned, I return you my thanks for your great 
civility. Besides what is irreparable, my pecuniary loss is great. I 
apprehended no danger, and therefore look no precaution. But how 
great soever that loss may be, I think it does not become me to claim 
or expect reparation from the state. I have made up my mind to my 
misfortune as I ought, with this consolation, that it came from those 
whose object manifestly was general confusion and destruction at 
home, in addition to a dangerous and complicated war abroad. If I 
should lay before you any account or computation of the pecuniary 
damage I have sustained, it might seem a claim or expectation of being 
indemnified. Therefore you will have no further trouble on this sub- 
ject from 

"Your most obedient and humble Servant, 

" Mansfield." 



440 LORD MANSFIELD. 

exerted but in cases of such exlrcmo urgency as this, the peo- 
ple of England would never have felt inclined to murmur as 
they have very naturally done, at the abuses of the pension-list. 
It may doubtless be said, that small praise is due to a man who, 
being himself in the possession of great wealth, chooses to re- 
frain from quartering on the public purse, those he is bound, and 
is well able, to provide for himself. This is incontestably true. 
Such conduct is only entitled to the negative praise, that it is not 
unworthy. But we have only to cast our eyes around us, and 
we shall unfortunately be compelled to allow that it has also, if 
not the merit, at least the peculiarity, of being extremely rare. 
That it has not been at all more common among chancellors and 
chief justices, than with ministers, secretaries, and lords of the 
bedchamber, may be demonstrated by a very cursory inspection 
of the list of sinecure offices, wherein by no means a small or 
an unconspicuous space is occupied by the posterity of deceased 
judges, and the relatives or connexions of the living. 

On Lord Camden's resignation in the beginning of 1770, the 
Great Seal had been again offered to Lord Mansfield, and again 
he had declined it. After the death of Charles Yorke, it was 
once more tendered to his acceptance, and it was only on his 
positive refusal that it M'as finally committed (January 23rd, 
1771) to Lord Bathurst. A higher dignity in the peerage was 
also at his command ; but having no children of his own, nor 
for some time, indeed, any prospect of male heirs in his family, 
he declined for himself the honours of a more elevated heredi- 
tary rank. The king had already conferred upon him the per- 
sonal honour of creating him a Knight of the Thistle. At 
length, however, on hearing that the lady of his nephew, Lord 
Stormont, was about to become a mother, he felt a very natural 
anxiety that his own should be taken as the first title in his 
family, and he accordingly expressed his desire to exchange his 
baron's coronet for an earldom. From his own account, given 
in a letter to Bishop Newton, the manner in which this dignity 
was conferred was such as to give him great pleasure. The 
patent of his creation bears date October 3 1st, 1776. He was 
therein designated as Earl Mansfield, of Mansfield in the county 
of Nottingham. The title was granted to himself and his heirs 
male, or in default of such, to Louisa Viscountess Stormont, and 



LORD MANSFIELD- 441 

her heirs by Lord Stormont. The patent was thus drawn out, 
because it was held at the time that an English peerage could 
not be limited, even in remainder, to one who was already a peer 
of ScoUand. Some years afterwards (1792), when it had been 
decided that this could be done, a new patent was granted, in 
which he is styled Earl Mansfield of Caen Wood, in the county 
of Middlesex, with remainder to Viscount Stormont, and the 
heirs male of his body. The later of these patents not having 
the effect of superseding the other, it happens that, at this time 
(1830), a son of the then Lord Stormont bears the title of Earl 
Mansfield of Caen Wood, in the county of Middlesex, while 
the then Lady Stormont, who is still living, is, in her own right, 
Countess Mansfield of Mansfield, in the county of Nottingham. 
Caen Wood, the place named in the later patent, is a villa and 
small estate so called, in the neighbourhood of Highgate. This, 
which had only been his occasional residence before the destruc- 
tion of his town mansion in Bloorasbury Square, afterwards 
became his more constant abode. The death of his lady, which 
happened four years afterwards (1784), deprived him of an 
affectionate companion, with whom he had enjoyed nearly forty- 
six years of uninterrupted domestic happiness. The loss must 
have been to him irreparable: but his friends and acquaintances 
found her place supplied, and the honours of his hospitable 
board equally well performed, by his two nieces ; who had, for 
sometime before, been constant inmates of his house, and con- 
tinued so as long as he lived. The same elegance and propriety 
for which his domestic establishment had always been remark- 
able, still continued to distinguish it. We are assured by some 
who have had good opportunity for observation, that in no situa- 
tion did Lord Mansfield appear to greater advantage than at liis 
own table. The dignified manner of the judge was there laid 
aside for the affability and ease of the polished gentleman. Nor 
did he ever suffer the pride of genius, or of great acquirements, 
to seduce him into the habit of displaying his intellectual supe- 
riority in the moments of social intercouse. If, as Johnson said 
of his friend Burke, the man of genius could be detected even 
by an ostler to whom he might give directions about his horse, 
or by a stranger who might take refuge from a shower under the 
same gateway with him, we may suppose it is not very likely 

29 



442 LORD MANSFIELD. 

any one should pass several hours in the society of such a man 
as Lord Mansfield, without making the same discovery. But 
there never was on his part any studied or voluntary exhibition 
of his powers. Indeed, he was generally averse from introduc- 
ing any topic of conversation that might call for much exertion 
of thought. His public duties gave sufficient occupation to the 
severer faculties of his mind ; and as (to make use of Coke's 
favourite phrase) the bow cannot be kept always bent, he was 
glad to avail himself of opportunity to relax its tension. 

An anecdote is related of him, which shows that, even much 
earlier in life, he not only enjoyed but felt the necessity of grant- 
ing himself this indulgence, and which at the same lime dis- 
plays his character in a very favourable light. He had reason 
to feel himself under considerable obligation to Lord Foley, who, 
if report speaks true, had persuaded his family to let him make 
the law his profession, instead of the church, for which they had 
originally designed him ; and had obviated all objections as to 
pecuniary matters, by volunteering to defray the additional 
expenses of his legal education out of his own purse. The 
debt of gratitude thus incurred by the young lawyer was never 
afterwards forgotten. When he had risen to eminence at the 
bar, he was in the constant habit of spending his Saturday after- 
noons and Sundays at the old nobleman's country mansion ; 
and upon some of his acquaintance expressing their surprise 
that he should forego all the social pleasures at his command to 
pay his accustomed visit at so dull a house, he assured them 
that he thereby enjoyed the double gratification of giving plea- 
sure to a tried friend, and of allowing his mind an interval of 
complete repose. 

Probablj^many persons were in the habit of winding up to 
the highest pitch their expectations of the instruction they were 
to. derive from the conversation of one, whose reputation for 
wisdom and eloquence ranked so deservedly high ; and in that 
case it was not at all unlikely they should experience a feeling 
of disappointment, when they found him merely bear his part, 
likfr an ordinary guest, in the familiar chit-chat of the dinner 
table. In the same manner, we have no doubt, many an idler 
who had consumed his morning in doing nothing, and would 
fain have babbled of books when he found himself, towards 



LORD MANSFIELD. 443 

evening, in the same room with such a man as Gibbon, must 
have been surprised to see the philosophic historian sit down to 
the card-table, and bestow as much apparent attention upon the 
kings and knaves in his hand, as he had been giving during the 
previous part of the day to the kings and the knaves who make 
a figure in the affairs of the Lower Empire. But we venture 
to say, any one who had known what it was to keep all the 
faculties of his mind for a long time together on the stretch, 
would be as little likely to participate in this astonishment or 
disappointment, as a sportsman to wonder at seeing a brother 
fox-hunter fast asleep in his chair after a hard run. Only the 
indolent or the unemployed are apt to commit* the common 
injustice (common as indolence and the want of occupation) of 
estimating the mental powers of a hard-working lawyer, or 
author, by such a display of them as he may choose to make in 
private society, when he is perhaps making an effort to keep 
them, as much as possible, in a state of inaction. 

It is not every Chief Justice of the King's Bench who has 
the same multiplicity of public duties to burthen his mind, that 
fell to the share of Lord Mansfield. There has never been one, 
for example, among those who have had a seat in the House of 
Peers, who took such a prominent part in the debates ; and the 
weight attached to his opinions, on all questions of foreign as 
well as of domestic policy, entailed upon him the necessity of 
bestowing deep consideration, thought, and sometimes also 
research, before he uttered them. Then his duties as a privy 
councillor were not to be performed without much labour. For 
many years, government relied almost solely upon him for the 
decision of appeals from the colonies ; and these were much 
more numerous at that time, than they have been sin«e the sepa- 
ration of America from the mother country. Perhaps it may 
be needless to add, that his attendance in court by no means 
constituted the whole of what he was called upon to do in his 
capacity of Chief Justice alone. Besides the customary attend- 
ance at chambers, many of the decisions pronounced by the 
bench required study that occasionally occupied the evenings not 
spent in attendance at the House of Lords. In a note to one of 
his fellow judges, at the time he was preparing his elaborate 
argument in the case of Taylor v. Horde, he gives an account 



444 LORD MANSFIELD. 

of the time he chose for pulling his materials together : — "I am 
very impatient," he writes, "to discharge myself enliroly of it. 
While the company is at cards, I play my rubbers at this work, 
not the pleasantest in the world ; but what must be done I love 
to do, and have it over." Now when the mind is thus continu- 
ally kept on active duty, occasional relaxation is as necessary to 
recruit its strength, as cessation from bodily toil to repair the 
animal forces. In both cases, too, repose is a positive enjoy- 
ment, and like most other enjoyments, is better appreciated in 
proportion as it is more seldom tasted. Another of his letters, 
giving an account of the zest with which he indulged in com- 
plete idleness, during a long vacation, he concludes by quoting 
the very just remark: "Liber esse mihi non videtur qui non 
aliquando nihil agit." 

Perhaps it was partly in consequence of Lord iMansfield's 
general abstinence from any severe exertion of his mental facul- 
ties, except such as the duties of his station demanded, that he 
contrived to keep them unimpaired up to the latest period of a 
long life. Little more than a week before his death, his nephew, 
Lord Stormont, on asking his opinion concerning a law case in 
which he was concerned, found that he still retained the same 
clearness and quickness of perception for which he had been 
always remarkable, and that his powers of reasoning remained 
almost entirely unimpaired. About three years before this, one 
of his nieces was reading Burke's work on the French Revolu- 
tion, which formed at that time the general topic of conversation, 
and happening to meet with the word psephismata, she applied 
to a gentleman near her for an explanation of its meaning. His 
answer was, that he had considered it to be a misprint for sophis- 
mata; but Lord Mansfield immediately corrected his error, and 
after a short pause, recited from memory a tolerably long pas- 
sage from Demosthenes, wherein the word in question was 
employed, and explained by the context. He was then in his 
eighty-sixth year. His bodily strength did not last so long. His 
increasing infirmities prevented him from taking his place in 
court after Michaelmas Term, 1787. Probably he then antici- 
pated a return of health that might enable him to resume his 
seat there, for he did not immediately resign his situation ; but 
finding his expectations on this score disappointed, he gave in 



LORD MANSFIELD. 445 

his resignation, on the 4th of June in the next year ; having 
thus held the situation of Chief Justice within a few months of 
thirty-two years. As soon as his secession was made known, 
the bar came to the resolution of deputing Mr. Erskine, then 
one of the leading counsel in the Court of King's Bench, to 
convey to him an address of farewell in their name ; and accord- 
ingly, about a fortnight afterwards (June 18), the following letter 
was sent to him at Caen Wood. In less than five minutes from 
the receipt of it, his answer, which we shall also subjoin, was 
delivered to the bearer : — 

" My Lord, — It was our wish to have waited personally upon 
your lordship in a body, to have taken our public leave of you, 
on your retiring from the office of Chief Justice of England ; 
but judging of your lordship's feelings upon such an occasion by 
our own, and considering, besides, that our numbers might be 
inconvenient, we desire, in this manner, affectionately to assure 
your lordship, that we regret, with a just sensibility, the loss of 
a magistrate whose conspicuous and exalted talents conferred 
dignity upon the profession, whose enlightened and regular 
administration of justice made its duties less difficult and labo- 
rious, and whose manners rendered them pleasant and respect- 
able. But, while we lament our loss, we remember with 
peculiar satisfaction, that your lordship is not cut off from us by 
the sudden stroke of painful distemper, or the more distressing 
ebb of those extraordinary faculties which have so long distin- 
guished you among men ; but that it has pleased God to allow 
to the evening of a useful and illustrious life the purest enjoy- 
ments which Nature has ever allotted to it — the unclouded 
reflections of a superior and unfading mind over its varied 
events ; and the happy consciousness that it has been faithfully 
and eminently devoted to the highest duties of human society, 
in the most distinguished nation upon earth. May the season of 
this high satisfaction bear its proportion to the lengthened days 
of your activity and strength !" 

*' Dear Sir, — I cannot but be extremely flattered by the 
letter which I this moment have the honour to receive. If I 
have given satisfaction, it is owing to the learning and candour 
of the bar : the liberality and integrity of their practice freed 
the judicial investigation of truth and justice from difficulties. 



446 LORD MANSFIELD. 

Tlie memory of the assistance I have received from them, and 
the deep impression which the extraordinary mark they have 
now given me of their approbation and affection has made upon 
my mind, will be a source of perpetual consolation in my decline 
of life, under the pressure of bodily infirmities, which made it 
ray duty to retire. — I am, dear Sir, 

With gratitude to you and the other gentlemen, 
Your most affectionate and obliged humble servant, 

*' Mansfield." 

Caen Wood, June 18lh, 1788. 

There was nothing of exaggeration or of insincerity in thelan- 
guaore of affectionate attachment towards the venerable Chief 
Justice, thus eloquently expressed by Erskine on behalf of the 
bar. The affability and kindness of his manner towards the 
whole of the profession had always in reality been such as to 
convert into a pleasure those duties which are certainly as irk- 
some as can well be, when such qualities are not to be found on 
the bench. And they were displayed, too, with perfect impar- 
tiality towards every member of the bar. The differences of 
silk gown and stuff gown, of large or small practice, of a seat in 
the front or in the back row, never caused the slightest distinc- 
tion in the uniform urbanity of Lord Mansfield's address and 
demeanour. That sort of undue influence with the bench, 
which, every one who attends the courts will admit, has some- 
times been painfully conspicuous in the case of particular coun- 
sel, whether acquired by favouritism, or by the presumption of 
superior knowledge, or eminently successful practice, was never 
to be remarked in the King's Bench while Lord Mansfield pre- 
sided there; although, like most other judges, he had his private 
friends among them, and although the bar could boast of such 
men as Mingay and Bearcroft, and Dunning and Erskine, and 
many others whose names will long continue to live in the recol- 
lection of their successors. The junior barristers had particular 
reason to feel gratified by his attention to them. He would often 
relieve the timidity or the embarrassment of an inexperienced 
young man, by a few words of encouragement, or an observa- 
tion that would throw a sudden ray of light upon his case. He 
also instituted a custom, for which not only the younger mem- 
bars of the profession, but the public in general ought still to 



LORD MANSFIELD. 447 

hold themselves indebted to him ; one that does as much 
towards facilitating the dispatch of the term business in court, as 
equalizing the distribution of a considerable portion of it among 
counsel of different standing. This was the going through the 
bar. Previous to his time, it had scarcely ever happened that 
in one day motions were heard from more than the two or three 
first rovi's of benches ; and when on the following day the hour 
would arrive for moving the court, it had been usual to com- 
mence again with the Attorney-General, or senior king's counsel, 
and go on as before^ according to the established form of prece- 
dence. Thus, a junior on one of the back rows might wait for 
a term or more without having an opportunity afforded him of 
moving; the necessary consequence of which was, that clients, 
rather than incur the certainty of a great delay in the progress of 
a cause, never thought of entrusting this sort of business to any 
but those who claimed the right of pre-audience. Lord Mans- 
field's practice was to go entirely through the bar, if possible, 
every day, in the same manner as now is done ; but if time 
pressed, and he could only call on a portion of the barristers, he 
began the next day precisely where he had left oft', and heard 
those who had previously missed their opportunity, before he 
began again within the bar. The benefits of this method are 
obvious; and it is to be regretted that it is not still adhered to, so 
far as regards the alternative adopted whenever the court could 
take but part of the motions at one sitting. 

The only fault ever found by the bar with Lord Mansfield's 
demeanour on the bench, was the habit he sometimes indulged 
in of reading the newspaper, or writing letters while counsel 
were addressing the court or the jury. This is a custom we cer- 
tainly shall not attempt to defend. But it must be remarked, 
that this neglect of the speaker was always more apparent than 
real, for in summing up the evidence, or delivering his opinion, 
as the case might be, it was evident that nothing of importance 
had escaped him ; and it is to be supposed, that those who were 
convinced by constant experience how fully he possessed the 
power of thus dividing his attention, were ready to pardon the 
mere semblance of bestowing it altogether upon matters foreign 
to the business in hand. Casual frequenters of the court, who 
were not daily accustomed to witness the display of his aston- 



448 LORD M4NSFIELD. 

ishing menory, would occasionally expect nothing less than to 
find him embarrassed and confused, when he began the recapitu- 
lation of evidence or arguments, of which he had not only taken 
no note, but had been to all appearance a very inattentive auditor ; 
so that when, on laying down his newspaper, he went minutely 
through the whole, not forgetting or mis-staling so much as the 
name of a single case or a single witness, their wonder knew no 
bounds. But there was much more to admire than the mere dis- 
play of memory. There was the statement of the case, in itself 
worth an argument, the clear arrangement of facts, the acute de- 
duction of inferences, the ready replies to objections, and the 
conclusion so plainly suggested to the hearers, long before it was 
announced, that the least able reasoners might be betrayed into 
a high opinion of their own discernment, for perceiving what the 
consummate art of the speaker had made it quite impossible they 
should not perceive. 

During the whole period of his chief-justiceship, the court 
seldom or ever failed to be crowded in term time with a con- 
course of students, who frequented it as the best school of legal 
instruction they could attend. Indeed, previous to Mr. Justice 
Buller's rapid rise at the bar, and early promotion to the bench, 
which induced young men to pursue the same course of study 
he had so ably profited by, and first rendered general the prac- 
tice of passing the greater part of their noviciate in the chambers 
of a special pleader, a constant attendance upon the courts had 
been the most usual method adopted for the acquirement of 
practical knowledge of the law. Lord Mansfield always appears 
to have taken quite a fatherly interest in their progress, and to 
have made it a part of his duty to afTord them every facility of 
acquiring solid and correct information. Whenever he was 
about to pronounce the decision of the court, in a cause that had 
been argued some time before, he generally called upon one of 
the counsel concerned to give a statement of the case, for the 
benefit of the students, before he began to deliver the judgment; 
and numerous instances are recorded in Burrow's Reports, of 
his stopping to explain obscure points of law or of history con- 
nected with the case, to give his opinion upon the character of 
particular books, or to refute some erroneous doctrines sup- 
ported by strong authority ; all, as he expressly used to state, 



LORD MANSFIELD. 449 

that the students might not be misled. We know not what finer 
or more instructive lectures they could have listened to than the 
elaborate arguments, rich with historical illustration and judicious 
comment, by which he explained the grounds of the decisions in 
such cases as Taylor v. Horde, or Millar v. Taylor, or Wynd- 
ham V. Chetwynd, or a host of others we might quote. 

Though his general deportment on the bench was character- 
ized quite as much by dignity, as by courtesy and suavity of 
manner, he did not consider it incumbent upon him to preserve 
so much stateliness, but that he might occasionally relax the 
muscles of the court with a jest. When Macklin had recovered 
seven hundred pounds damages in an action for a conspiracy to 
hiss him off the stage, and after the delivery of the verdict de- 
clared it was not his intention to demand the sum, he received 
for his generosity and forbearance a compliment from the Chief 
Justice, which he afterwards used to tell of with as much delight 
as of Pope's exclamation on seeing him play the part of Shylock. 
"Mr. Macklin," said his lordship, "I have many times wit- 
nessed your performances with great pleasure ; but in my opinion 
you never acted so finely as upon this occasion." A prisoner 
being once tried before him for stealing a watch, he was direct- 
ing the jury to find the value of it under one shiUing, with the 
view of avoiding the conviction for grand larceny, when the pro- 
secutor interrupted him by calling out: "A shilling, my lord! 
why the very fashion of it cost me more than five pounds !" 
" Oh ! sir," said Lord Mansfield, " we cannot think of hanging 
a man for fashion's sake." The facetious Serjeant Davy had, 
one morning, been subjecting a Jew to a long cross-examination, 
in order to prove his incompetence to be received as bail. The 
amount required happened to be a very small one, and the Jew 
was dressed in a tawdry suit, all bedizened with tarnished lace. 
His lordship at length interfered: '* Nay, brother Davy," he 
said, "you surely make too much of this trifle — don't you see 
the man would burn for a greater sum ?" With another brother 
of the coif (Hill) he sometimes ventured upon a species of joke 
that, it must be owned, almost trespassed on the bounds of inde- 
corum. The Serjeant was a man who possessed deep and varied 
stores of learning. He had been distinguished at Cambridge 
both as a classical scholar and a mathematician, and had since 



450 LORD MANSFIELD. 

acquired extensive reputation for the profundity of his legal 
knowledge, particularly on the subject of real property. Indeed, 
there is no doubt he had more of mere legal learning than Lord 
Mansfield ; but he was so wholly deficient in the art of turning 
it to account in public, ihat there was as much difference between 
the practical value of the knowledge possessed by them, as 
between that of a block of coal and a diamond, both of which 
are but different modifications of the self-same substance. 
Among his contemporaries at the bar, he always went by the 
name of Serjeant Labyrinth ; for he never attempted to argue a 
case, without speedily involving himself in such a maze as be- 
wildered himself no less than his hearers. On such occasions, 
his intellect and his senses would seem alike enwrapped in a 
mist; he would stand motionless in one posture, his eyes half 
closed or dimly fixed on vacancy, and, wholly unconscious of 
the presence of the auditory, would roll forth sentence after sen- 
tence, heap tautology on tautology, and, in endeavouring to ex- 
plain one obscurity, go on propounding others still more obscure, 
like a heavy-laden horse floundering in soft mire, and sinking 
the deeper the more he labours to extricate himself. It may be 
supposed the gravity of the bar was not altogether proof against 
so ridiculous an exhibition. By the time smiles had increased 
to tittering, and tittering was well nigh expanding into a niost 
audible laugh, Lord Mansfield would generally interfere, and call 
upon the learned Serjeant by name. As he was rather deaf, and 
besides wholly wrapt up in his own speculations, the call was 
generally repeated three or four times before he stopped ; and 
then some inquiry after the state of his health would often turn 
out to be the only matter for which the Chief Justice had inter- 
rupted him. We know not whether Serjeant Hill inwardly 
resented this sort of quizzing, but it certainly is sufficiently evi- 
dent from the notes he was in the habit of writing on the msrgin 
of his copy of Burrow's Reports (which notes are inserted in the 
modern edition of that work), that he felt anything but a friendly 
disposition towards Lord Mansfield. 

The long and eminently useful career of this illustrious magis- 
trate was finally closed on the 19lh of March, 1793, he being 
then in his eighty-ninth year. Though not free from the infirmi- 
ties of age during the latter part of his life, he underwent little 



LORD MANSFIELD. 451 

or no bodily suffering. Nor was his death occasioned by any 
painful or violent disease. The first symptoms of illness were 
felt on Sunday, March 10th : he shortly afterwards fell into a kind 
of stupor, and this settled into a trance so complete, that no other 
mode could be devised to afford him the slightest sustenance, 
except that of occasionally wetting his lips with a feather dipped 
in wine or vinegar. On the 15th, very litde appearance of life 
could be detected ; some appearance of mortification began 
already to be visible ; and in this state he lingered on till the 
19th, when he sank by an almost imperceptible transition into 
death. On the morning of the 28th of the same month, his 
body was privately interred in the same tomb with the remains 
of his lady, in Westminster Abbey ; according to a wish express- 
ed in })is will, that he might be suffered to show this mark of 
respect to the place of his early education. It had been the in- 
tention of the judges and raem.bers of the bar to testify their 
respect for his memory, by assembling in full numbers to attend 
the funeral ; but the design was abandoned, on their being in- 
formed it had been his own desire that the ceremony should be 
as private as possible. A bequest of fifteen hundred pounds 
having been left some years previously, by a Mr. Bailey, to 
defray the expense of a monument to his memory, Flaxman, 
who had then just returned from his studies at Rome, was de- 
puted to execute one, and it was placed on the spot where he had 
been buried, between the tombs of Lord Chatham and Lord 
Robert Manners. The bulk of his fortune, which was very con- 
siderable, comprising, it is said, upwards of 26,000/. a year on 
mortgages, besides property otherwise invested, descended witli 
his title to his nephew. Lord Stormont. Considerable legacies 
were left to his two nieces, the honourable Anne and Marjory 
Murray, to whom the king, in compliment to the memory of 
their uncle, shortly afterwards (April, 1793) granted, by his 
royal sign manual, the same pre-eminence and precedence as if 
they had been daughters of an Earl of Great Britain. Among 
the other bequests was one of 2000/. to Mr. Justice Buller, who 
had been indebted to the friendship of Lord Mansfield for his 
early promotion to the bench ; and would have been nominated 
as his successor, but for the debility of his health, in consequence 



4f52 LOUD MANSFIELD. 

of which the chief-justiceship was given, with a peerage, to Sir 
Lloyd Kenyon, the Master of the Rolls. 

With the exception of the celebrated answer (drawn up in 
1752, when he was Solicitor-General) to the memorial of M. 
Michel, the secretary to the Prussian embassy, which, though 
it bears the signature of other law officers besides himself, we 
know to be entirely his composition, we are not aware that any 
proofs of his talents as a writer have been preserved. The 
protest against the repeal of the American Stamp Act, which was 
entered on the journals of the House of Lords in 1776, during 
the time when he was in opposition to the administration, is also 
supposed to have been dictated by him throughout. It is allowed 
to be one of the ablest performances contained in the records of 
Parliament ; as the former production assuredly is a model for 
state papers. The general belief, which is expressed in the 
verses of Cowper we have already quoted, was, that several 
manuscript compositions of his own were consumed by the con- 
flagration of his house in Bloomsbury Square ; but this was 
merely a vague supposition, and as it is well known that he never 
was fond of writing, we may infer that it was incorrect. The 
grandest monument of his genius is assuredly the commercial 
jurisprudence which he created and brought to maturity. 

In stature Lord Mansfield was not above the middle size. 
His personal appearance was extremely prepossessing, and this 
natural advantage, which is of more importance to an orator than 
is perhaps usually supposed, he improved by the consummate 
grace and propriety of his gesture in speaking; in the same 
manner as he gave additional effect to the natural melody of his 
voice, by his skill in modulating it. The brilliancy and vivacity 
of his eye was such as could not fail to catch the attention, and 
gave token of the acuteness and vivacity of his intellect. The 
general expression of his countenance is probably familiar to 
most of our readers, from the many likenesses of him that have 
been painted, and reproduced in the shape of engravings. The 
originals of two miniatures by Vanloo, taken in the earlier part 
of his professional hfe, are still, we believe, in the possession of 
private individuals. Besides the portrait painted by Martin for 
Christ Church, there is another by the same artist, representing 



LORD MANSFIELD. 453 

him ill the court dress he wore when presented to the king and 
queen of France, during a short visit he paid to his nephew at 
Paris in the year 1774. He also sat twice to Copley, at the 
request of his friend Mr. Justice Buller ; and once to Sir Joshua 
Reynolds, on the solicitation of the Corporation of London, who 
were anxious to adorn Guildhall with the portrait of one who 
had done so much, on that very spot, to claim the gratitude and 
the respect of the merchants of England. Trinity Hall, Cam- 
bridge, has a bust of him by Nollekens. 

There can be little occasion, we think, for adding to this 
sketch, however feeble and imperfect, of the life and character of 
Lord Mansfield, any formal refutation of the calumnies which 
personal jealousy or political enmity have directed against him. 
We have already alluded to the most serious of them ; and we 
are even not without apprehension that, in so doing, we may 
appear sometimes to have committed the fault which of all others 
we should be most anxious to avoid, namely, that of pleading 
for him as an advocate, rather than endeavouring with strict 
impartiality to form a calm judgment as to his merits. If this 
be so, we can only say that we have, at least, done all in our 
power to guard against this besetting sin of biographers. It is 
only on mature consideration of the charges made against' him, 
that we have arrived at the conviction of their injustice. As to 
his political opinions, we think it quite unnecessary to uphold 
them, in order to justify his adoption of them. That he was 
sincere and honest in his belief of their soundness, and always 
consistent in his advocacy of them, is, in our estimation, quite 
sufficient for that purpose. With respect to his merits as a 
judge, we consider them beyond all praise. We believe, indeed, 
that the opinion of the public in general, as well as of the legal 
profession, is quite made up on this point ; and that we shall run 
little risk of contradiction, when we declare that, in our estima- 
tion, he has done more for the jurisprudence of this country, 
than any legislator, or judge, or author, who has ever made the 
improvement of it his object. 



LORD CAMDEN 



The possession of the highest offices in the law lias so iinfre- 
quently been found united in the same individual with a declared 
opposition to the encroachments of prerogative, and a zealous 
assertion of popular privileges, that it is matter of surprise that 
the biography of Lord Camden, in whom this union was most 
conspicuous, and who was in consequence, during a great part 
of his political life, the object of unbounded national applause 
and reverence, instead of being fully written by some of his con- 
temporaries qualified for the task by intimate personal know- 
ledge, should never even have been detached, except in the most 
meagre and imperfect manner, from the general history of Eng- 
lish politics, and the bulk of contemporary memoirs. Even in 
the recently published "Lives of Eminent Lawyers," imbued 
as the volume is throughout with its author's attachment to the 
principles of Whiggism, the life of this most eminent Whig 
lawyer, judge, and statesman, has not found a place. 

The name of Lord Camden was mentioned in a former me- 
moir,* as one in the catalogue of lawyers by descent. His father, 
Sir John Pratt, descended from a family of some antiquity and 
consideration, which had been settled since the reign of Eliza- 
beth at Careswell Priory, near Collumpton, in Devonshire, was 
called to the bar about the year 1684, and practised with much 
reputation during the three following reigns, and represented the 
borough of Midhurst in two Parliaments, until, on the accession 
of George L, he was appointed a judge of the King's Bench ; 
and in Easter Term, 1718, on the elevation of Lord Parker to 
the Chancellorship, was raised to the dignity of Chief Justice of 
the same court, in which he presided until his death in February 

* Life of Lord Hardwicke, ante, p. 33L 



LORD CAMDEN. 455 

1724. Many a young sessions subaltern, who might otherwise 
have remained unconscious of the existence and dignities of Sir 
John Pratt, has been made familiar with his name from the well- 
known doggerel version of a settlement case, preserved by Bur- 
row, and transplanted into Burn's Justice, wherein his lordship 
as Coryphaeus, and the puisne judges as the Chorus, are made 
to chaunt forth the judgment of the court touching the case of a 
woman who 



-"having a settlement, 



Married a man with none." 

Sir John had by each of two marriages a family of four sons 
and four daughters. Charles, the subject of this memoir, the 
third son by his second wife (daughter of Hugh Wilson, a 
Montgomeryshire clergyman and canon of Bangor), was born 
about the close of 1713 or the beginning of 1714. Of his 
boyhood and early youth we can find little recorded, beyond 
the general statement that he was already distinguished as a lad 
of much promise, and reasonably diligent and studious, pos- 
sessing at the same time a flow of animal spirits, and a cheerful 
and affectionate temper, which made him a great favourite 
amongst his companions. He was sent early as a colleger to 
Eton, and had for his contemporaries there, amongst others, the 
elder Pitt, Lyttelton, and Horace Walpole ; the two former, 
however, a few years his seniors. It is most probable that he 
laid there the foundation of that friendship with the first of 
them, which lasted unbroken and undiminished till his death, 
and which, in their mature years, was drawn into so close a 
political as well as personal attachment. That young Pratt 
did not much misemploy his time at school is manil'est from 
the circumstance of his obtaining the election to King's College, 
Cambridge, where he entered into residence in the October 
Term, 1731. 

The scholars of King's, as our readers are aware, being en- 
titled to their degree without the necessity of appearing in the 
university schools, or passing the ordeal of a senate-house ex- 
amination, it was not necessary for him to employ the period of 
his undergraduateship in the prosecution of the ordinary aca- 
demical studies, and he was left at liberty to apply himself to 



456 LORD CAMDEN. 

others more congenial willi his taste, and, as it proved, more 
subsidiary to his success and reputation in the world. Destined 
from the first for the legal profession (for he had been entered 
of the Inner Temple at the age of fifteen), it appears, accord- 
ingly, that his favourite reading (of a serious kind), was directed, 
while at college, to the iiistory and constitutional law of Eng- 
land ; and he exhibited already that predilection towards the 
popular principle in the constitution, by which his public life 
was so uniformly marked. In all the contests in which his col- 
lege was engaged, whether for the election of its own officers, 
or the establishment of its exclusive privileges, Pratt was found 
espousing the popular side, and opposing himself to " unstatuta- 
ble influence," with as much warmth and tenacity as he after- 
wards was wont to display on the wider arena of national dispute. 
He became as of right, at the end of three years from his elec- 
tion, a fellow of his college, and proceeded in due course to 
his bachelor's degree in 1735-6, and to his master's in 1740 ; 
having in the interval, viz. in Trinity Term, 1738, been called 
to the bar.* 

He practised, or rather waited for practice, some years at the 
common-law bar, and travelled the western circuit, without 
obtaining that reasonable share of business, which his own 
talents, application, and professional a;!quirements, aided by the 
influence derived from his father's name and reputation, and his 
family connexions in the West of England, might have been 
expected to secure to him, without undergoing that melancholy 
period of long probation, which many an aspiring youth has 
fondly anticfpated would have been sufficient to clothe him in 
the honours of silk, if not to open a near prospect of the dig- 
nities of ermine — instead of leaving him with the sad adjuncts 
of a bag as empty, and a pocket emptier, than it took him up. 
For eight or nine long years did Pratt travel the same dull and 
almost hopelsss round,t until, if tradition speak truth, he was at 

* His entry of admission bears date 5lh June, 1728; his call 17ih 
June, 1738. He is designated in the entry " Carolus Pratt, generosus, 
filius quintus (that is, the fifth surviving son) honorabilissimi Joannis 
Pratt, eq." &c. 

•j- It was during this unpromising season that his school and college 
friend, Sneyd Davies, addressed to him a poetical epistle, (it is printed 



LORD CAMDEN. 457 

last introduced to business by one of those lucky incidents which 
have been attributed to more than one lawyer of eminence dead 
or living. Tlie story bears, that he was at length so dispirited 
by his continued ill success, as to entertain serious thoughts of 
relinquishing his profession, returning to the seclusipn of his 
college, and qualifying himself for orders ; so that, with the 
proceeds of his fellowship to eke out for the present the scanty 
portion of a fifth son (if aught yet remained of it*), and with 
the certainty of succession to a college living in the course of a 
few years, he might be able to assure himself of an honourable 
though limited independence. With this melancholy prospect, 
he went to make one final experiment on his circuit, and then, 
if fortune were still unpropitious, to give up the pursuit. He 
communicated his determhialion to his friend Henley, afterwards 
Lord Chancellor Northington, who was some years his senior, 
and also went the western circuit. Henley combated his pur- 
pose, first with raillery, and then with serious expostulation ; 
but finding both insufficient to beat him out of it, managed to 
get him engaged as his own junior in a cause of some import- 
ance ; and being, or contriving more probably to absent himself 
on the plea of being, taken ill, it fell to Pratt to hold the leading 
brief; and he acquitted himself so well, and displayed at once 
so much professional knowledge and ready power of elocution, 

in the sixth volume of Dodsley's collection,) in which he set before 
him the examples of Somers, Cowper, Talbot, Yorke, who, in spite of 
difficulties, 

"Sped their bright way to glory's chair supreme, 
And worthy fill'd it. Let not these great names 
Damp, hut incite; nor Murray's praise obscure 
Thy younger merit ; for these lights, ere yet 
To noonday lustre kiudled, had their dawn : 
Proceed familiar to the gate of fame ; 
Nor deem the task severe — its prize too high 
Of toil and honour, for thy father's son." 
* Pratt himself, in a familiar letter of the dale of 1741 (the third 
year only of his probation), bears witness to his state of impecuniosity : 
— " Alas, ray horse is lamer than ever ; no sooner cured of one shoulder 
than the other began to halt. My losses in horse-flesh ruin me, and 
keep me so poor, that I have scarce money enough to bear me out in 
a summer's ramble ; yet ramble I must, if I starve to pay for it." 

30 



458 LORD CAMDEN. 

as to ensure the verdict for his client, and to acquire among the 
dispensers of business, as well as among his brethren at the bar, 
the reputation of a sound lawyer and eloquent advocate. 

The ice was now broken, and we see him henceforward 
swimming stoutly with the stream. Circuit business first flowed 
in upon him ; his friend Henley, we are told, continued his good 
offices ; we find his name occurring here and there in the reports 
of the period,* until, in the course of some five or six years, he 
came, more particularly in cases wherein general principles or 
constitutional rights were involved, into extensive and profitable 
employment. In 1752 we find him second counsel in defence 
of Owen the bookseller, who was the subject of a government 
prosecution for publishing a pamphlet in vindication of Alex- 
ander Murray, the proceedings against whom by the House of 
Commons for sedition attracted for some time so much atten- 
tion : and on that occasion he strenuously maintained, in his 
address to the jury, the doctrine which he afterwards asserted 
with such energy in Parliament, of their right to return a general 
verdict, and to pronounce upon the intention of the accused, as 
well as upon the fact of publication and the correctness of the 
innuendos. Some years afterwards, when in the character of 
Attorney-General, he conducted the prosecution against the 
Jacobite pamphleteer, Dr. Shebbeare, (the first libel case tried 
before Lord Mansfield,) he equally assumed the same right in 
the jury, and accordingly, as he tells us himself, turned his back 
upon the judge while opening the case and commenting on the 
alleged libel, so as to intimate that in his view the whole ques- 
tion was one which the jury had the sole cognizance of, and the 
bench had no part in. In Owen's case, the jury adopted his 
view of the matter, and found an unqualified verdict of " not 
guilty," to which they adhered in spite of the inquiry which 
the Chief Justice (Lee), at the Attorney-General's suggestion, 
addressed to them, whether or not they were satisfied with the 
evidence of publication. We see him also engaged in several 
other important crown cases within the two or three following 

* The first printed case in which we have found his name appearing 
is a settlement case in Michaelmas Term 1750; but the names of 
counsel were at that time of day given and omitted very irregularly. 



LORD CAMDEX. 4o9 

years, and learn that he obtained besides considerable practice 
and reputation at the bar of the House of Commons ; and it 
appears to have been, thus far at least, principally as an advocate 
well read in constitutional law, and known as a liberal inter- 
preter of it, that he established himself in general estimation. 
He does not appear at all in the courts of equity, until after his 
appointment as Attorney-General ; and in the minor matters of 
daily discussion in the King's Bench, his name occurs less fre- 
quently than that of many others. But he was about to be 
busied upon a wider and more important scene. 

The Duke of Newcastle's administration began, early in the 
year 1756, to exhibit unequivocal symptoms of disorganization, 
and promised speedily to fall asunder before the combined assault 
of the two parties of Rockingham and Pitt. The timid and 
irresolute spirit of the minister crouched before the fulminations 
of his great opponent, and sunk within him at the gathering 
difficulties which the disasters of the war abroad, and increasing 
discontents at home, brought round him. In November of that 
year, the disjointed cabinet, notwithstanding all his attempts to 
patch it up, fell irretrievably to pieces. The series of negotia- 
tions and intrigues which occupied the next half year are well 
known to all readers of the memoirs of the time. They ended 
at last, in June 1757, in the restoration of the Duke to the 
nominal head of the government, Pitt being, as Secretary of 
Slate, its presiding spirit ; and the post of Attorney-General 
becoming vacant by Sir Robert Henley's acceptance of the great 
seal, Pitt insisted, as a personal favour to himself, on its being 
filled by Pratt, his early friend, and in whose coincidence of 
opinion on political subjects he could place full confidence. He 
was accordingly installed in it, over the head and to the great 
chagrin of Charles Yorke, who had been some time Solicitor- 
General, and who, years afterwards, in Pitt's second adminis- 
tration, endeavoured to revenge himself by privately plotting 
with Charles Townshend, then Chancellor of the Exchequer, 
the undermining of the ministry of which they both were mem- 
bers, and the formation of a new one, in which Yorke himself 
should occupy the woolsack ; an intrigue to which the young 
king George lU. (already a worthy proficient in that science of 
dissimulation which has been pronounced by high authority a 



460 LORD CAMDEN. 

necessary qualification in a sovereign) was also a secret party, 
and which was rendered abortive only by Townshend's unex- 
pected death. 

A seat in Parliament was obtained for the new Attorney-Gene- 
ral for the borough of Downton, which he continued to occupy 
as long as he remained a member of the House of Commons. 
Almost the first parliamentary duty imposed upon him was one 
which conveyed a high compliment — that of preparing and con- 
ducting through the House the bill for explaining and extending 
the provisions of the Habeas Corpus Act,* the introduction of 
which arose out of a decision of the Court of King's Bench, that 
the statute of Charles H. did not apply to the case of a party 
impressed into the king's service, unless he were charged with 
some criminal matter. In performing this office, " he declared 
himself," says Horace Walpole, " for the utmost latitude of the 
Habeas Corpus ; and it reflected no small honour on him, that 
the first advocate of the crown should appear as the firmest 
champion against prerogative." No distinct report of his 
speeches on this occasion is extant, the debates in the Com- 
mons, as we have them in the Parliamentary History, being all 
thrown into the form of a single argument on either side. The 
bill, as is well known, after encountering httle opposition in that 
house, was rejected by the Lords, "in complimeat to Lord 
Mansfield," according to Walpole ; at all events, in deference to 
his and Lord Hardwicke's authority and influence, and the un- 
disguised hostility of the king: nor was it until more than half a 
century afterwards, and even then not without much opposition, 
that the legislature adventured on an extension of the act, abso- 
lutely necessary to give effect to its spirit and principles, and to 
which no argument could be opposed beyond the ordinary topics 
of prejudice and feebleness, — vague declamation about the dan- 
gers of innovation, and the absolute and unimproveable excel- 
lence of the system to be changed. 

It was about this time that Pratt, already past forty years of 

* A pamphlet published on that occasion, entitled "An Inquiry into 
the Nature and Effect of the Writ of Habeas Corpus, the great bulwark 
of English Liberty, both at Common Law and under the Act of Parlia- 
ment, and also into the propriety of explaining and amending that Act," 
was attributed to Pratt. 



( 



LORD CAMDEN. 461 

age, found out that he had remained long enough a bachelor, 
and that, for the full enjoyment of his brilliant prospects, it was 
expedient to share them with a partner. The lady of his choice 
was Elizabeth, daughter and co-heir of Nicholas JefTerys, Esq., 
of Brecknock Priory. Their first child, the late venerable Mar- 
quis Camden, was born on the 11th of February 1759 : another 
son, Robert, who entered the army and died abroad, and three 
daughters, were the other issue of the marriage. 

It fell to Pratt to conduct, as Attorney-General, the prosecu- 
tions against Dr. Hensey and Dr. Shebbeare for treason and 
sedition in 1758, and in 1760 that against the unfortunate Earl 
Ferrers : in all of which he demeaned himself after the honour- 
able pattern of moderation and fairness set him by his prede- 
cessor Murray, and in a very different style from that in which 
state trials had been wont to be conducted. "As I never thought 
it my duty," he says in Lord Ferrers' case, " to attempt at elo- 
quence when a prisoner stood upon trial for his life, much less 
shall I think myself justified in doing it before your lordships; 
give me leave therefore to proceed to a narration of the facts." 
He now enjoyed, besides his official emoluments, an almost en- 
grossing private practice in the courts of equity, \o which (in 
the anticipation, it may be, which was eventually realized, of 
succeeding his friend Lord Northington when gout or party 
should drive him from the much coveted seat), he had confined 
himself since he became Attorney-General. We have had the 
curiosity to look through Lord Northington's Reports, where 
the names of the counsel are almost uniformly given, and find, 
during the four years from 1757 to 1761, five cases only in 
which the Attorney-General does not appear, in three of which 
five the counsel are not named at all. He had also received from 
the corporation of Bath the honour of being elected, in 1759, Re- 
corder of that city. 

The accession of the new sovereign, the ascendancy of Lord 
Bute, and the resignation of Pitt, wrought no depression of 
Pratt's fortunes. He continued to occupy his post of Attorney- 
General until December 1761, when the death of Chief Justice 
Willes created a vacancy on the bench of the Common Pleas, 
which the government had no difficulty in offering at once for 
his occupation ; and in the present aspect of politics, he had as 



462 LORD CAMDEN. 

Utile licsitation in accepting a lucrative and now permanent dig- 
nity ; and accordingly, iiaving been first called to the degree of 
the coif, and knighted, he took his seat as Chief Justice on the 
13th of January following ; Justices Clive, Bathurst, and Noel, 
bein<T his colleajjues on the bench. A ^ew weeks afterwards, he 
writes to his old friend Dr. Davies — " I remember you prophe- 
sied formerly that I should be a chief justice, or perhaps some- 
thing higher. Half is come to pass: I am Thane of Cawdor: 
but the greater is behind ; and if that fails me, you are still a 
false prophet. Joking aside, I am retired out of this bustling 
world to a place of sufficient profit, ease, and dignity ; and be- 
lieve that I am a much happier man than the highest post in the 
law could have made me." So men persuade themselves. His 
friend lived, however, to congratulate him on his elevation to 
that highest post, and might have exclaimed to him in turn — 
"Thou hast it now, King, Cawdor, Glamis, all." 

Very few days elapsed, before the new Chief Justice gave a 
sufficient indication of the principles on which he intended to 
administer justice. In one of the first cases that came before 
him, a question arising as to the discretionary power of the 
court to receive or reject a plea puis darrein continuance, he 
took occasion to say, that "such discretion was contrary to the 
genius of the common law of England, and would be more fit 
for an eastern monarchy than for this land of liberty ; nuUi 
negabimus justitiara, nulli deferemus," &c. Nor was it very 
long before it appeared that he was not, in his judicial capacity, 
to be exempt from the discussion of questions of political right of 
the deepest concern to the liberty of the subject. In the spring 
of 1763, the memorable proceedings against Wilkes and his ob- 
noxious North Briton, prosecuted by means of general warrants 
from the secretary of state, gave birth to numerous actions, at his 
own suit and that of the persons employed by him (there were 
fifteen or sixteen in all), against the secretaries, Lords Halifax 
and Egremont, Mr. Wood, their under-secretary, and the offi- 
cers engaged in the execution of the v/arrant. All these were 
brought in the Common Pleas ; the known principles of the 
Chief Justice aflJording a sufficient guarantee, that, at all events, 
the objects of court vengeance would not meet with less counte- 
nance than the ministers of it. Before, however, any of them 



LORD CAMDEN. 463 

were ripe for trial, arose the question as to Wilkes' own right to 
be discharged from imprisonment. It was rested on three 
grounds ; the incapacity of the secretary of state to issue a war- 
rant of commitment at all; the want of particular statement in 
the warrant as to the nature of the libel ; and lasdy, the defend- 
ant's privilege of parliament. It was upon the last ground only, 
namely, that the publication of a libel was not, as a breach of 
the peace, such an act as deprived the libeller of his privilege, 
that the Court, Wilkes being brought up by Habeas Corpus, 
directed his discharge ;* nor did the judgment pronounced by 
the Chief Justice on that occasion in any degree declare, as was 
commonly alleged, the illegality of general warrants, which was 
not then brought into discussion. That question arose, however, 
speedily afterwards, in the action brought by Leach the book- 
seller against the messenger. Money, who, under the authority 
of the same warrant, had seized his papers and imprisoned his 
person. The Chief Justice having stated his decided opinion 
that the warrant was illegal, and the defendants were not within 
the protection of the statute of the 24 G. 2, c. 44, requiring no- 
tice of action to magistrates, a bill of exceptions was tendered on 
behalf of the defendant, which was not, however, argued before 
the Court of King's Bench until 1765, when the case laid the 
foundation of Dunning's fame, and elicited from the Court a 
strong opinion against the validity of the warrant, although it 
ultimately went off on a bye point. In the same term with this 
(Michaelmas 1763), was tried also the case of Wilkes v. Wood, 
in which the Chief Justice gave way to all his constitutional 
warmth, in denouncing the proceedings under the warrant: — 

" The defendants claim a right, under precedents, to force 
persons' houses, break open escrutoires, seize and detain their 
papers, upon a general warrant, where no inventory is made of 
the things thus taken away, and where no offenders' names are 
specified in the warrant, and therefore a discretionary power 
given to messengers to search wherever their suspicions may 

* Lord Kenyon intimated, in R. v. Despard (7 T. R. 742) that law- 
yers of eminence, who had considered the point since, were of opinion 
that Lord Camden had on this point rather overstepped the line of the 
law; and said, that at all events the judgment was irreconcilable with 
many cases solemnly decided. 



464 LORD CAMDEN. 

happen to fall. If such a power is truly invested in a secretary 
of state, and he can delegate that power, it certainly may affect 
the person and property of every man in these kingdoms, and is 
totally subversive of the liberty of the subject. And as to the 
precedents, shall that be esteemed law in the secretary of state, 
which is not law in any other magistrate in the kingdom ? If 
they should be found to be legal, they are certainly of the most 
dangerous consequences ; and if not legal, must aggravate the 

damages Upon the maturest consideration, I am bold 

to say that this warrant is illegal : but I am far from wishing a 
matter of this consequence should rest solely upon my opinion ; 
it may be referred to the twelve judges, and there is a still higher 
court before which it may be canvassed, and whose decision is 
final. If these superior jurisdictions shall declare my opinion 
erroneous, I submit, as will become me, and shall kiss the rod ; 
but I must say, I shall al way's consider it a rod of iron for the 
chastisement of the people of Great Britain." 

These opinions he had not formed hastily. When, in the 
discussion in the House of Commons upon the same question, 
in the February following, Mr. Pitt's usage, when in office, to 
grant such warrants was quoted from the ministerial bench, he 
admitted that in the first instance in which he issued one (which 
was for the seizure of some persons on board a vessel sailing 
for France during the war), he had first consulted the Attorney- 
General, who told him at once the warrant would be illegal, and 
if he issued it he must take the consequences. On the present 
occasion, either the charge to the jury, or their impression that 
the chief object of ministerial attack was now seeking redress 
at their hands, produced a verdict for a considerably larger 
amount of damages — i^lOOO, namely — than was given in any 
of the other cases. After it was returned, the defendant's coun- 
sel tendered a bill of exceptions, which the Chief Justice re- 
jected as being too late. In several of the cases, also, motions 
were made for new trials on the ground of the excessive damages, 
which the whole Court agreed in refusing; considering the jury 
as the constitutional judges of the compensation due to the sub- 
ject for the unlawful restraint on his person and outrage on his 
property. The Court concurred also with the Chief Justice 
(and this is a matter on which more difference of opinion has 



LORD COIDEN. 465 

existed, and which admits perhaps of more question) in consid- 
ering the illegality of the proceedings, and their importance as 
affecting the rights of the subject generally, justifiable grounds 
for aggravating the damages in the particular case, which were 
not necessarily to be limited by the amount of actual imprison- 
ment or injury sustained.* 

Another obnoxious publication — the " Monitor or British 
Freeholder" — was not long afterwards the object of prosecution, 
and the government were equally unlucky in the result of their 
proceedings. In one of the actions brought by the printer 
against the king's messengers (Entick v. Carrington), the ques- 
tion arose and was solemnly debated on a special verdict, as to 
the power of the secretary of state to issue a warrant for the 
seizure of a party's papers, for the purpose of obtaining evidence 
to fix him as the publisher of a seditious libel. The Chief Jus- 
tice, after the Court had taken a considerable time for delibera- 
tion, delivered a most elaborate and masterly judgment, in which 
the several points that had been raised in argument were dis- 
cussed in order, and the authorities and legal principles applying 
to each of them, it may be affirmed, as nearly as possible ex- 
hausted. They were, first, whether the secretary of state, as 
such, or as a privy councillor, was invested with the character of 
a conservator of the peace, and the power of issuing a warrant 
against a party charged with a state offence ; secondly, whether, 
if he were such a conservator, he was within the equity of the 
statute of the 24 Geo. 2 ; thirdly, whether the defendants had 
in fact duly pursued their authority; and lastly — by much the 
most important of all — whether the warrant was in its nature 
legal. On all the points except the first the opinion of the court 
was expressed unequivocally in the negative. To the argument, 
that the legality of such warrants ought to be inferred from the 
long usage to grant them, and the absence of any recent instance 
in which they had been questioned, the Chief Justice gave its 
fit answer, — that no argument could be drawn from the submis- 
sion of guilt and poverty to power and the terror of imprison- 

* la Leach v. Money, the damages were £400; in Huckle v- 
Money, £300 ; in twelve other cases verdicts were taken by consent 
for £200. 



466 LORD CAMDEN. 

ment ; that it would be strange doctrine, to assert that all the 
people of this land were bound to acknowledge that to be uni- 
versal law, which a few criminal booksellers had dreaded to 
dispute. This judgment was not long afterwards (22nd April, 
1766), followed by a resolution of the House of Commons, 
declaring warrants for the seizure of papers in cases of libel 
illegal.* 

The popular sentiments thus announced from the judgment 
seat, and the liberation and victory of Wilkes, the idol of the 
hour, lifted the Lord Chief Justice Pratt into the full tide of 
national favour. Addresses of thanks flowed in upon him from 
every side: London, Dublin, Norwich, Exeter, Bath, voted him 
the freedom of their corporations ; and his picture, painted by 
Reynolds, was solicited to adorn the Guildhall of the metropolis, 
with a Latin inscription "in honour of the^zealous assertor of 
English liberty by law." So popular did his name become, that 
he was at this period, as we find from a letter of Horace Wal- 
pole to Lord Hertford, one of the lions that a foreigner visiting 
London went to see. More permanent honours from the gift of 
the crown were soon to follow, and which might less reasonably 
have been looked for than demonstrations of favour from the 
people. One of the first and most popular acts of the short- 
lived Rockingliam administration, on its accession to power in 
July 1765, was to advance him to the peerage, by the title of 
Baron Camden, of Camden Place, in the county of Kent; a 
property which had once belonged to the celebrated antiquary 
of that name, and had passed, after several changes of owner- 
ship, into the possession of the Pratts. But he did not therefore 
yield an undiscriminating support to the measures of the govern- 
ment. On the contrary, the very first occasion of his speaking 
in the House of Lords (February 10, 1766) was in vehement 
opposition to the resolution which, as a condition precedent to 
the repeal of the Stamp Act, affirmed the right of Great Britain 
to make laws binding on the Am.erican colonies. He denied the 

* Lord Camden and Dunning were believed to be the joint authors 
of the celebrated " Letter concerning Libels, Warrants, Seizure of Pa- 
pers," &c. printed a ^qw years afterwards in Almon's Register, and for 
which a prosecution was commenced against the publisher by Lord 
North's government, but dropped. 



LORD CAMDEN. 467 

favourite doctrine of the omnipotence of Parliament; he denied 
that they could impose a tax upon the subject which he had not 
consented by his representatives to grant, with any more right 
than they could take away private property without making 
compensation, or condemn a man by bill of attainder without 
hearing him. He affirmed that in all past instances — in the 
case of the clergy, of the counties palatine, of Wales, of Ireland, 
— taxation had been accompanied, as its necessary adjunct, by 
representation. Disclaiming, as a consequence of his reasoning, 
the conclusion that America would be justified in claiming her 
independence, or resisting by rebellion the acts of the British 
legislature, although made without authority, he insisted never- 
theless on the exclusive right of the colonists in law to tax them- 
selves. And, lastly, he urged forcibly on the attention of the 
government the wisdom and expediency of abstaining from the 
assertion of a right, which, even if well-founded, could not be 
exerted without exasperating America and endangering Great 
Britain. 

These doctrines, from which not many would now be found 
to withhold their assent, at least in theory, were characterized 
from the woolsack as "new, unmaintainable, unconstitutional;" 
the Chancellor declared that he had heard a paradox in every 
law he knew of; and in the other House of Parliament they 
were visited with even stronger denunciations. A few weeks 
afterwards, on the introduction of the declaratory bill founded 
on the resolution of the two Houses, Lord Camden re-asserted 
still more strenuously his opinion, that taxation and representa- 
tion were inseparable. "This position," he said, "is founded 
in the laws of nature; nay more, it is an eternal law of nature 
itself: for whatever is a man's own, is absolutely his own ; no 
man has a right to take it from him without his consent, expressed 
by himself or his representative ; whoever attempts to do it 
attempts an injury; whoever does it commits a robbery;* lie 
throws down and destroys the distinction between liberty and 

* George Grenville, the author of the American Stamp Act, was very 
angry at this phrase, and declared that the House ought to take some 
notice of such language; but the House was something wiser than to 
meddle in the matter. 



468 LORD CAMDEN. 

slavery. I wish the maxim of Machiavel were followed, that 
of examining a constitution at stated periods, according to its 
first principles ; this would correct abuses and supply defects : I 
wish the times would bear it, and that men's minds were cool 
enough to enter upon such a task, and that the representative 
authority of this kingdom were more equally settled." He 
ridiculed the idea that the House of Commons began to exist at 
any definite a5ra : "It began with the constitution, it grew up 
with the constitution ; there is not," he continued, in words 
which have become familiar almost to every school-boy, but are 
nevertheless a good deal more rhetorical than true, — " there is 
not a blade of grass growing in the most obscure corner of this 
kingdom, which is not, which was not ever, represented since 
the constitution began ; there is not a blade of grass which, when 
taxed, was not taxed by the consent of the proprietor." We 
need hardly add, that he was found amon^ the most strenuous 
supporters of the repeal of the Stamp Act. 

The fall of Lord Rockingham's ministry--" that heterogene- 
ous compound of youth and caducity," as it was termed by 
Chesterfield — in the following year, opened to the other section 
of the Whig party the road to power and patronage. The great 
seal, left at Pitt's disposal by the resignation of Lord Northing- 
ton, he could have no hesitation in bestowing upon him, who, 
while he was his firmest political ally and among his most valued 
personal friends, had perhaps in other respects also the best title 
to the advancement. Lord Camden was accordingly, on the 30th 
of July, 1766, sworn into office as Lord Chancellor; receiving 
by way of compensation for his removal from a permanent to a 
precarious dignity, the same terms which had been secured to his 
predecessor* — the reversion of a tellership of the exchequer for 
his son, with a salary of about 3500/., and a pension of 1500/. to 
himself, in case he should be dismissed from the chancellorship 
before the office in the exchequer became vacant. This arrange- 
ment, which certainly had at that time of day considerable excuse 
(for no retiring pension was then awarded to the office of Chancel- 

♦ Lord Henley, by the way, denies that this bargain was made for 
Lord Northington, but it is asserted by both Walpole and Lord Walde- 
grave. 



LORD CAMDEN. 469 

lor), was afterwards made matter of reproaqh against Lord Chat- 
ham by Lord North's followers, and defended by him in terms of 
such indignant bitterness at his friend's dismissal, as to provoke 
a motion that his words should be taken down ; a proceeding, 
however, from which his assailants, reminded by his haughty 
defiance with whom they had to deal, deemed it prudent quiedy 
to recede. 

During the four years of Lord Camden's presidency in the 
Common Pleas, the business of the Court, with the exception of 
the political trials we have spoken of, and a few other cases of 
some importance, was not of a nature to involve the discussion 
of general principles of jurisprudence," or to call forth much 
display of judicial learning, or of that argumentative eloquence 
for which he was distinguished. Of mercantile questions, more 
especially, the Court of King's Bench, where they were adjudi- 
cated on by the great architect of our system of commercial law, 
had almost an entire monopoly. But all his contemporaries 
unite in bearing testimony to the combination of dignity, impar- 
tiality, and courtesy, with which he presided over the delibera- 
tions of his court. On no occasion was there a final difference 
of opinion between him and his fellows on the bench, except in 
the important case of Doe dem. Hindson v. Kersey, wherein 
Lord Camden, in an argument of great power and learning, 
maintained, in opposition to the other judges of his own court, 
and also to the unanimous decision of the King's Bench in 
Wyndham v. Chetwynd, that the true construction of the 
Statute of Wills required an attestation by witnesses whose 
competency was then unimpeached, and that they were not 
^^ credible witnesses," in the meaning of the legislature, whose 
interests might induce them to dishonest dealing at the time of 
the attestation, although their incompetency were removed when 
called to establish the will in a court of justice. The legislature, 
by passing the statute of the 25th Geo. IL, evinced their sense 
of the policy, if not of the legal correctness, of this construction ; 
and more recently, we believe, it has received the sanction of 
eminent real property lawyers on purely legal principles. We 
may particularize also the cases of Freeman v. West (2 Wils. 
165, on the law of freeholds in futuro), Syllivan v. Stradling, 
(id. 209, deciding that a plea of nil habuit in tenementis is no 



470 LORD CAMDEN. 

bar to an avowry under the stat. 11 Geo. II., c. 19), and John- 
son V. Kennion, (id. 2G2, as to the extent of the indorsee's 
claim against the drawer of a bill of exchange), as cases of 
importance and authority, decided under the auspices of Lord 
Camden. 

It was an unlucky period at which the new administration 
assumed the functions of government, and the first occasion on 
which Lord Camden publicly appeared in the character of a 
cabinet minister, was one which drew upon him the reproach 
of having already deserted the defence of constitutional right to 
maintain a usurpation of prerogative. The increasing high 
prices of grain, arising from the entire failure of the harvest, 
induced ministers, a [ew weeks before the time fixed for the 
assembling of Parliament, by an order in council, to lay an 
embargo on the export of wheat, in contravention of the existing 
law. All parties admitted the necessity of the measure ; but the 
ministry justified it as a legal exercise of prerogative, on the 
principle that sahis popidi est suprema lex, and that the power 
of providing against such extreme contingencies, which must of 
necessity exist somewhere, was constitutionally lodged in the 
sovereign f while the opposition insisted, that the crown could 
no more legally dispense with or suspend the operation of this 
law, than that of Magna Charta or the Bill of Rights ; that Par- 
liament ought to have been specially convened for the purpose 
of sanctioning the measure a priori, or, at all events, that the 
government should have sought the earliest possible occasion of 
admitting its illegality, excusing themselves by its necessity, and 
obtaining regular parliamentary absolution by an act of indem- 
nity. Although the matter in dispute between the parties was 
thus narrowed into a question of mere theory, it involved un- 
doubtedly a constitutional principle of the highest importance ; 
and it was, accordingly, the subject of long and very acrimonious 
debates in both Houses, in the course of which began that per- 
sonal strife between Lords Camden and Mansfield, which after- 
wards manifested itself on almost every question of a politico- 
legal character that came before the House of Lords. Lord 

* Lord Camden at least took this ground ; it seems doubtful whether 
Lord Chatham ever distinctly asserted the legality of the measure. 



LORD CAMDEN. 471 

Camden (wlio had been, as he subsequently avowed, the chief 
adviser of the measure) allowed his warmth of temperament 
somewhat to overbear iiis discretion, when he let slip the expres- 
sion, that if the act in question was an illegal exercise of the 
prerogative, " it was but forty days' tyranny at most ;" words 
which called down upon him the dignified rebuke of Lord 
Temple, and brought him under the scalpel of the more formid- 
able Junius. The ministry subsequently admitted their want of 
confidence in their own vindication, by introducing a bill of in- 
demnity for the officers who had acted in execution of the order, 
in which, however, they persisted in refusing to include them- 
selves who had advised it.* 

The motley administration which had thus been called into 
existence by Lord Chatham, and which Burke so pleasantly 
depicted as " a cabinet so curiously inlaid — such a piece of 
diversified mosaic — such a tesselated pavement without cement, 
here a bit of black stone and there a bit of white," — and of which 
the only chance of coherence lay in the controlling genius of its 
framer, as soon as his immediate influence was withdrawn, fell 
apart at once into its natural disunion. Early in 1767, frequent 
and severe attacks of gout disabled Lord Chatham from any 
effective participation in the measures of government; and dis- 
gust at the arbitrary tone they presently assumed completed his 
estrangement. Lord Camden entertaining sentiments entirely in 
correspondence with his, viewed the proceedings of his colleagues 
with little less distaste, although he did not so soon make a formal 
secession from their ranks. Having protested without efl^'ect 
against the imposition of the American import dutieshin 1767, 
and against the illegality of their proceedings v/ith regard to the 
Middlesex election in the following year, he withdrew himself 
from the cabinet whenever those subjects were under discus- 
sion, and watched their progress through Parliament in moody 
silence. At length, on the opening of the memorable session of 
1770, the smothered flame burst forth, and with a fury propor- 
tioned to its long suppression. On the discussion of Lord 
Chatham's amendment to the Lords' address (Jan. 9), which 

* Our readers will recollect that Mr. Canning, in a similar case in 
1826, applied for an idemnity of the most comprehensive kind. 



472 LORD CAMDEN. 

expressed a strong censure on the incapacitating vole of the 
House of Commons, the Chancellor broke out into unmitigated 
opposition. He declared that " he had accepted the seals with- 
out any conditions, but he had too long submitted to be tram- 
melled by his majesty — he begged pardon — by his ministers; 
but he would be so no longer ; tliat for some time he had 
beheld with silent indignation the arbitrary proceedings of the 
government ; that he had often drooped and hung his head in 
council, and disapproved by his looks those steps which he knew 
his avowed opposition would not prevent; that, however, he 
would do so no longer, but openly and boldly speak his senti- 
ments." He characterized the vote of the Commons as a direct 
attack on the first principles of the constitution, and protested 
that if he were as a judge to pay any regard to it, he should 
look upon himself as a traitor to his trust and an enemy to his 
country. And he followed up his declaration of hostility by 
voting in favour of the amendment. 

The standard of defiance thus openly unfurled, it was not to 
be expected he would abide long in the ministerial tents. On 
the very same evening, accordingly, Lord Weymouth, the Secre- 
tary of State, moved an adjournment for a week, evidently for 
the purpose of giving time for the removal of the Chancellor, 
and the appointment of his successor. Lords Temple and 
Shelburne inveighed loudly against this proceeding : — " After 
the dismission of the present worthy Chancellor," said the latter, 
" the seals would go a begging; but he hoped there would not 
be found in the kingdom a wretch so base and mean-spirited, as 
to accept them on the conditions on which they must be 
offered." So long, however, as the unnatural union subsists — 
which we have still a lively hope of seeing severed— of judicial 
and political functions in the person of the same individual, it is 
rather too much to expect that he should be retained as a coad- 
jutor in the exercise of the latter, by men against whose policy 
he has declared open war on points of vital importance. Nor 
was it long before the allurements of power, aided by the per- 
sonal solicitation of the sovereign, found a successor for the 
vacant ofiice in the person of Charles Yorke, and that under 
such painful circumstances of defection from his political prin- 
ciples, as to call down upon him the bitter reproaches of his 



LORD CAMDEN. 473 

party, to close his brother's door against him, and to irritate his 
remorseful feelings into the cause of a premature and melan- 
choly death. 

The premier himself, embarrassed by the difficulties with 
which he was surrounded, increased as they were by the defec- 
tion of Lord Camden, and of Dunning, his ablest supporter in 
the House of Commons ; writhing too under the envenomed 
attacks of Junius, and himself a reluctant supporter of many of 
the measures of his own cabinet, abandoned the helm before the 
end of the same month of January. He also, as well as Lords 
Shelburne and Camden, subsequently avowed that he had been 
opposed in principle to the adoption of coercive measures 
against America, and that in 1769 he had unsuccessfully origi- ' 
nated in the cabinet a proposition for the repeal of the duties im- 
posed two years before. Taunted with their inconsistency in 
remaining ostensible partners in measures tliey condemned, 
their common defence was, that the temper of the House of 
Commons was too strong to contend against, and that they 
should have withdrawn only to leave the whole power in the 
hands of those by whom a system of policy more uniformly 
objectionable would have been pursued without condition or 
restraint; — an excuse too much akin to that of the delinquent 
school-boy, who robs an orchard on the principle that if he do 
not steal the apples, somebody else will. Had Lord Camden's 
presence in the cabinet availed to overbear or moderate the 
measures he disapproved, his justification would have stood on 
better grounds ; but by his own avowal it had no such effect ; 
and we cannot, therefore, but consider his submission, for above 
two years, even to a silent participation in councils which he 
considered prejudicial to the best interests of his country, as 
detracting from the independence and purity of his political 
character. 

In the exercise of his judicial functions, he appears to have 
conciliated the respect and good opinion of all parties. His 
extensive legal information, the acuteness and sagacity of his 
judgment, the perspicuity with which his opinions were pro- 
pounded, his dignified politeness, more graceful by contrast with 
the unrefined manners of his predecessor, combined to attract to 
him the high esteem, as well of the profession as of the public 

3] 



474 LORD CAMDEN. 

at large. Of the soundness of his decrees no proof need be 
adduced beyond the fact, that one only of them (so far as we can 
discover) appears to have been reversed on appeal, and that only 
as to part; and his judgments still continue, we believe, to 
maintain an authority as high as those of any of the great law- 
yers who have occupied his seat. The meagre (and sometimes 
inaccurate) notes of Ambler and Dickens, confined to the task 
of giving the dry conclusions of law in the fewest and most 
ordinary words, convey not, of course, the least idea of the 
style or effect of his judicial oratory. But that it was of a 
highly attractive character, we have the testimony of a valuable 
witness. " I distinctly remember," says Mr. Butler, " Lord 
Camden's presiding in the Court of Chancery. His lordship's 
judicial eloquence was of the colloquial kind — extremely simple ; 
diffuse, but not desultory. He introduced legal idioms frequently, 
and always with a pleasing and great effect. Sometimes, how- 
ever, he rose to the sublime strains of eloquence : but the sub- 
limity was altogether in the sentiment; the diction retained its 
simphcity ; this increased the effect." 

Some of the cases which reached the House of Lords while 
Lord Camden occupied the woolsack, were of the highest inte- 
rest, and of them we possess fuller and more faithful reports. 
We may particularize the writs of error in the cases of Wilkes 
and Evans the dissenter, and the appeal in the " great Douglas 
case," in which the Chancellor warmly seconded Lord Mans- 
field in affirming the legitimacy of the appellant, and even went 
so far as to impeach those who held a contrary opinion of some- 
thing approaching to atheism: — "The question before us is 
short/' he concluded: " is the appellant the son of the Lady 
Jane Douglass or not ? If there be any lords within these 
walls who do not believe in a future state, they may go to death 
with the declaration that they believe he is not." We may here, 
also, most fitly advert to another legal question of much interest, 
in which he took a prominent part, although it did not come 
before the House until some time after he resigned the great 
seal: we mean the case of Donaldson v. Becket, in 1774, by 
which the law of copyright was finally settled as it now* stands. 



1833. 



LORD CAMDEN. 47j5 

A few years before, in the case of Millar v. Taylor, the Court 
of King's Bench had recognized the existence of a common- 
law right in an author to publish his works in perpetuity, and 
determined that such right was not abridged by the statute of 
Anne. Lord Camden, without directly contesting the natural 
justice of the principle on which this right at common law was 
rested, maintained, and was supported in his opinion by a 
majority of the judges, that at all events it was restrained by the 
statute, which would otherwise be inoperative altogether. He 
then proceeded to vindicate the policy of thus construing the 
law, in language which, though it has been often quoted, we 
extract as furnishing a favourable specimen of his declamatory 
eloquence : — 

" If, then, there be no foundation of right for this perpetuity 
by the positive laws of the land, it will, I believe, find as little 
claim to encouragement on public principles of sound policy or 
good sense. If there be any thing in the world common to all 
mankind, science and learning are in their U2iiwxe puhlici juris, 
and they ought to be free and general as air or water. They 
forget their Creator as well as their fellow-creatures, who wish 
to monopolize his noblest gifts and greatest benefits. Why did 
we enter into society at all, but to enlighten one another's minds, 
and improve our faculties, for the common welfare of the 
species ? Those great men, those favoured mortals, those sub- 
lime spirits, who share that ray of divinity which we call genius, 
are intrusted by Providence with the delegated power of impart- 
ing to their fellow-creatures that instruction which Heaven 
meant for universal benefit : they must not be niggards to the 
world, or hoard up for themselves the common stock. We 
know what was the punishment of him who hid his talent, and 
Providence has taken care that there shall not be wanting the 
noblest motives and incentives for men of genius to communi- 
cate to the world the truths and discoveries which are nothing if 
uncommunicated. Knowledge has no value or use for the soli- 
tary owner; to be enjoyed, it must be communicated: scire 
tuum nihil est, nisi fe scire hoc sciat alter. Glory is the 
reward of science, and those who deserve it scorn all meaner 
views. I speak not of the scribblers for bread, who tease the 
world with their wretched productions ; fourteen years is too 



476 LORD CAMDEN. 

long a period for their perishable trash. It was not for gain that 
Bacon, Newton, MiUon, Locke, instructed and deh'ghted the 

workl When the bookseller offered Milton five pounds 

for his Paradise Lost, he did not reject it and commit his poem 
to the flames, nor did he accept the miserable pittance as the 
reward of his labours ; he knew that the real price of his work 
was immortality, and that posterity would pay it." 

On this question of literary property, we feel bound humbly 
to take part against his lordship, at all events as to the policy of 
the law as thus established, and to avow our concurrence in the 
sentiment of Mr. Justice Wilmot, that " the easiest and most 
equal mode of encouraging the researches of men of letters, is 
by securing to them the property of their own works ;" — the 
same property in the produce of their mental labour, which all 
other persons enjoy in the produce of their labour of every other 
kind. The latter part of his lordship's argument appears to us 
(with all deference be it spoken) to border somewhat upon the 
region of cant. Can it be believed that Milton — however exalted 
his views in the composition of his great work — would not 
gladly have received for it as high a price as the booksellers 
would have been willing to pay? Lord Camden, we suppose, 
would have heard with much astonishment, if not with some 
scorn, of the sums which the great author of our time, whose 
memory his country is now delighting to honour, received with- 
out scruple, because without reproach, as the price of his works ; 
— "Not displeased," as he feared not to avow, "to find the 
game a winning one, although he should most probably have 
continued it for the mere pleasure of playing." The question 
is not, however, what may be the views of authors in publish- 
ing, but what is the fair and just reward that should be rendered 
to them for the labour of which society enjoys the benefit. Nor 
do we see why the "scribblers for bread" — those of them at 
least who do not prostitute their pens to unprincipled and vicious 
purposes — are to be visited with such contempt. We suspect 
that William Shakspeare, when he gave to the world some of 
the first and noblest of the immortal products of his genius, was 
pretty much in the situation of a " scribbler for bread ;" and one 
of the greatest of Lord Camden's own contemporaries — Samuel 
Johnson — might have furnished him with an example of one 



LORD CAMDEN. 477 

who, for years together, had no resource for a scanty subsistence 
but in the exercise of his pen, from which certainly flowed no- 
thing that could deserve the contemptuous designation of " per- 
ishable trash." We close this digression with repeating, that 
we cannot but consider the Copyright Act, construed as it has 
been since the case of Donaldson v. Becket, as operating, so far 
as it operated at all, no less against policy than justice. 

The administration of Lord North, framed upon the avowed 
principle of carrying into effect the coercive policy of the court, 
found in Lord Camden, as was to be expected, a vehement and 
uniform opponent. Wilkes's interminable affair first engaged 
the attention of Parliament. In all the successive debates that 
arose on this subject during the session of 1770, we find the 
ex-Chancellor assailing, with all the force of his argumentative 
eloquence, the proceedings in the House of Commons, and em- 
bracing, moreover, every opportunity of measuring M^eapons 
individually with Lord Mansfield- In the same year, the doc- 
trine again propounded by the Chief Justice, on the trials of 
Woodfall and Miller, as to the province of the jury in cases of 
libel, made his own personal conduct and judicial character the 
object at once of the rancorous invective of Junius, and of the 
more tempered but scarce less pointed hostility of his rival in 
the House of Lords. Whether the personality of attack which 
seasoned the political warfare of Lord Camden against his great 
opponent had its source, as is affirmed by Horace Walpole, in a 
long-cherished personal animosity, or was imbibed from the pre- 
judiced resentments of Lord Chatham, or grew unconsciously 
out of the many subjects of party strife between them, we have 
now no means of ascertaining. Whatever was the cause, he, as 
well as Lord Chatham, indulged in an acrimony of censure, not 
only upon the opinions, but upon the motives of the Chief Jus- 
tice, which certainly little dignified the cause they advocated, 
while it was unwarranted by the circumstances of the case, and 
entirely undeserved by the general character of the great magi- 
strate who was the object of it. We need not enter into the 
detail of this controversy, which has been observed upon in the 
Life of Lord Mansfield,* and which must be familiar to many 

* Ante, p. 430. 



478 LORD CAMDEN. 

of our readers. The constitutional timidity of the Chief Justice 
shrunk from taking up the glove which his bolder and more 
ardent antagonist threw down to him, and the question did not, 
until twenty years later, become tlie subject of a formal dis- 
cussion. 

During the whole progress of the ill-advised struggle with 
America, Lord Camden opposed the fatal measures of impotent 
and wanton exasperation which were successively proposed, with 
a force and fervour second only to those of his illustrious friend 
Chatham. We find him supporting, by his speeches as well as 
his votes, almost every one of the successive motions, by which 
the opposition endeavoured to force upon the government a con- 
viction of the obstinate and ruinous folly of their proceedings ; 
and he continued an active and efficient labourer in the cause, 
when the energies of its great leader were oppressed by bodily 
infirmity, and when, after kindling afresh into a brilliant but 
short-lived splendour, they were quenched finally in death. Nor 
did his opposition, any more than that of Lord Chatham, admit 
of compromise or modification, or content itself with arraigning 
the impolicy and danger of the contest. He unreservedly de- 
nounced Great Britain as the original aggressor, and justified the 
resistance of America as that of a brave people, standing upon 
the natural rights of mankind and the immutable laws of justice, 
to a vindictive and intolerable oppression. In 1775, he origin- 
ated a bill for the repeal of the Quebec Government Act, and on 
that occasion came again into angry collision with Lord Mans- 
field. In 1778, he drew up the lords' protest against the mani- 
festo of the American commissioners, which placed the hostile 
provinces under martial law, and upon which, in a speech of 
great power and effect, he had poured out in vain the full vials 
of indignant execration. At length, on the discussion of the 
address relative to the rupture with Holland, in January 1781, 
he expressed his determination to withdraw himself from his 
fruitless attendance in the House : — " He had discharged his 
duty to the best of his poor ability, so long as it promised to be 
productive of the slightest or most remote good ; but he declined 
giving iheir lordships or himself any further trouble, when hope 
was at an end, and when even zeal had no object which could 
call it into activity." During the remainder of that session. 



LORD CAMDEN. 479 

accordingly, his name occurs no more in the debates. But on 
the re-assembling of Parliament in November, the supremacy of 
the minister had begun to totter, and his lordship re-appeared to 
contribute his efforts towards its final overthrow, which took 
place, as is well known, in the March following: and on the 
formation of the new ministry, Lord Camden was installed in 
the honourable and not too laborious post of President of the 
Council, 

In most of the other questions of public interest, not connected 
with the war, which were agitated during Lord North's admin- 
istration, we find Lord Camden taking an equally active share. 
He warmly seconded the motion for an inquiry into the affairs 
of Greenwich Hospital ; was among the foremost in censure of 
the conduct of the government with regard to Ireland ; supported 
with much zeal Lord Shelburne's motion for an inquiry into 
the civil list, in February, 1780 ; and on the Contractors' Bill 
of the same session, ventured single-handed to engage both Lord 
Mansfield and Lord Thurlow. Immediately on the accession 
of the Whigs to power, the latter bill was reintroduced, and 
again Lord Camden lent his zealous assistance to secure its 
success, against the open hostility of the king and the "king's 
friend" — the self-seekino^ and double-dealing Thurlow. 

We must glance rapidly over the remaining years of Lord 
Camden's Life, in which, with one or two exceptions, he played 
a less prominent part in the political drama. During the brief 
reign of the Coalition ministry, he returned to the ranks of op- 
position, and warmly attacked Mr. Fox's India Bill, as calculated, 
while it violated to a wanton and unreasonable extent the char- 
tered rights of the Company, to augment dangerously the influ- 
ence of the crown, and to call into existence a "fourth estate," 
which might ultimately overturn the constitution altogether. 
When the coalition vessel had gone to wreck upon that memo- 
rable measure. Lord Camden would have been reinstated at 
once in his former office, but for the necessity of providing for 
Lord Gower, who had spontaneously tendered to the new pre- 
mier the aid of his influence and services, some post of promi- 
nent dignity and consideration. That noble lord, accordingly, 
held the presidency of the council for a short time, until the 



480 LORD CAMDEN. 

difficulties which beset the ministry were overcome, and then 
resigned it to Lord Camden. 

This interval he had employed in visiting Ireland, and acquir- 
ing a mass of information as to her condition and grievances, 
which he made eminently available on the discussion of the Irish 
Commercial Propositions in the following session. Although 
he had now attained his seventy-second year, his health and per- 
sonal activity, despite an occasional fit of the gout, continued 
little impaired, and he was still able to take an active part in 
most of the important measures that distinguished the early 
years of Mr. Pitt's ministry — as the East India Judicature Bill, 
the Wine Excise Bill, the East India Declaratory Bill of 1788, 
(fee. The second of these he defended purely on the ground of 
the necessity created by the great defalcations in the revenue, 
and the extensive frauds practised in the trade ; admitting at the 
same time the unconstitutional and dangerous character of the 
powers committed to the excise officers. " The extension of 
the excise laws," he said, " was a dangerous system, and fraught 
with multifarious mischiefs. It unhinged the constitutional 
rights of juries, and overturned the popular basis of every man's 
house being his castle : it armed petty officers with powers 
against the freedom of the subject, and put it into the power of 
the excise to insult the innocent, and disturb the tranquillity of 
an unoffignding subject. He had long imbibed these principles ; 
he had been early tutored in the school of our constitution, as 
handed down by our ancestors, and he could not easily get rid 
of his early prejudices. They still remained hovering about 
his heart, and must, on this occasion, come forward as the new 
sprouts of an old stalk." He had by this time received a new 
accession of dignity, having been created (May 13, 1786) Vis- 
count Bayham, of Bayham Abbey, in the county of Kent, and 
Earl Camden. His virtuous and patriotic successor was worthily 
honoured with the coronet of a Marquis. 

At the period of the king's illness in the winter of 1788-9, 
the conduct, in the House of Lords, of the measures introduced 
by government for the establishment of a regency, devolved 
upon the President of the Council. The opposition, while they 
contended strenuously in favour of the paramount right of the 



LORD CAMDEN. 481 

heir apparent, as strongly deprecated its being drawn formally 
into discussion, and charged principally upon Lord Camden the 
odium (which no doubt belonged equally to the whole cabinet) 
of its being made a parliamentary question. One of the pro- 
posed restrictions upon the exercise of sovereignty by the Regent 
' — the suspension of the prerogative of creating peers — Lord 
Camden denied could possibly produce any inconvenience, since 
Parliament might in effect grant a peerage in any case of pecu- 
liar desert, by passing an act enabling the Regent to bestow the 
dignity ; and he quoted several instances of such creations. 
Called sharply to order for the republicanism of his doctrines, 
he endeavoured to explain and quahfy, and at last condescended 
to something very like a retractation ; while the Chancellor (all 
the while engaged in an unprincipled intrigue with the Prince's 
party) sturdily re-asserted the correctness of his colleague's 
theory in its full extent. The rival doctrines that figured in 
these debates were throughout curious specimens of the political 
asymptote — approaching nearer and nearer to each other, but 
effectually prevented by party hatred and self-interest from the 
chance of ever coalescing. Thus, Fox fell foul of Lord Camden 
for imputing to him that he had contended for the Prince's right 
to assume the sovereignty, while, as he explained, he had only 
maintained his superior right to exercise it when accorded to him 
by Parliament — a superiority which must be inherent in his 
person, and therefore independent of and antecedent to the vote 
of Parliament. It was a contest, however, in which, we fear, 
the maintenance of abstract principles had in truth as little con- 
cern as might be. 

Dr. Watson gives us an anecdote from which he would have 
us infer the entire subserviency of Lord Camden at this period 
to Pitt. "I asked him," says the bishop, "if he foresaw any 
danger likely to result to the church establishment from the 
repeal of the Test and Corporation Acts ; he answered at once, 
none whatever ; Pitt was wrong in refusing the former applica- 
tion of the dissenters; but he must be now supported." Now, 
even supposing the worthy prelate's partizanship has not a little 
distorted the facts, the anecdote itself proves that Lord Camden 
was not in the habit of cloaking his opinions with any disguise ; 
and the circumstances of the time (1790), when, if ever, the 



482 LORD CAMDEN. 

union of a strong and efficient government was necessary to the 
country, ought to be taken into consideration. The bishop 
records another expression of Lord Camden about the same 
period, to the sincerity of which the political conduct of his 
whole life bore testimony : — " I remember liis saying to me 
one night, when the Chancellor (Thurlow) was speaking con- 
trary, as I thought, to his own conviction, — ' There now, I could 
not do that; he is supporting what he does not believe a word 
of.' " The very next occasion (and it was the last) on which 
Lord Camden bore a part in debate, was one which eminently 
displayed his continued independence of thought and action, 
while it called into exercise a host of old associations and sym- 
pathies ; we mean the introduction of Mr. Fox's Libel Bill in 
1792. He rose, says the Parliamentary History, and prefaced 
his speech by a very affecting address, declaring that he had 
thought never to have troubled their lordships more : — " The 
hand of age was on him, and he felt himself unable to take an 
active part in their deliberations. On the present occasion, 
however, he considered himself as particularly, or rather as per- 
sonally, called upon. His opinion on the subject had been long 
known ; it was upon record; it was upon their lordships' table. 
He still retained it, and he trusted he should be able to prove 
that it was consonant to law and to the constitution." He then 
proceeded to vindicate his opinions in a speech which, as we 
may pronounce from the report of it in the Parliamentary His- 
tory, displayed much constitutional knowledge and laborious 
research, and, if we may judge from the encomiums lavished on 
it by the succeeding speakers, rivalled in the graces of a dignified 
and forcible eloquence the best efforts of his more active years. 

This was, as we have intimated, the last public appearance of 
Lord Camden on the stage of political life. He continued, how- 
ever, to occupy his post of President of the Council until his 
death, which occurred on the 13th of April, 1794, at his house 
in Hill Street, Berkeley Square, in his eightieth year ; thirteen 
months only after that of his great antagonist Lord Mansfield. 
His remains were deposited in the family vault at Seal, in Kent. 

Few public men, probably, have been more generally or more 
enduringly beloved in private life than Lord Camden. Benevo- 
lent and affectionate, fond of social intercourse, and gifted with 



LORD CAMDEN. 483 

a flow of spirits which scarcely ever failed him, he not only 
, retained his intimacy with the associates of his early years, but 
made numberless new friends, from all of whom he seems to 
have won golden opinions and warm attachments. In the several 
relations of private life he is represented as having been most 
exemplary. The love of money was the chief fault imputed in 
his lifetime to him, as to others who have filled the same exalted 
station before and since. He does not certainly appear to have 
been profuse, but we find in no part of his conduct evidence 
that he was sordid. Horace Walpole, whose praise, as well of 
friends as foes, was " venomously nice," has left us an encomi- 
astic portrait of him, disfigured only by a single shade. " Chief 
Justice Mansfield had a bitter antagonist in the Attorney-General 
Pratt, who was steady, warm, sullen, stained with no reproach, 
and a uniform Whig. Nor should we deem less highly of him, 
because private motives stirred him on to the contest; — alas, 
how cold would public virtue be, if it never glowed but with 
public heat ! So seldom, too, it is that any considerations can 
bias a man to run counter to the colour of his ofl5ce and the 
interests of his profession, that the world should not be too scru- 
pulous about accepting the service as a merit, but should honour 
it at least for the sake of the precedent." In reproaching with 
suUenness a man whose disposition was of the very essence of 
cheerfulness and good-humour, the noble writer seems to have 
been most unfortunate in his choice of a depreciatory epithet. 

It was quite in keeping with the other features of Lord Cam- 
den's character, that he should be a little of an epicurean, and a 
little indisposed towards exertion, bodily or mental, unless when 
roused to it by the necessity of business or the excitement of 
strong feeling. He seems to have been, in his younger days at 
least, a professed disciple of the noble science of gastronomy in 
general, and (as became a native of a western county) an especial 
enthusiast in his admiration of that more pleasant than whole- 
some beverage, cider. Almost every one of his letters to an 
early friend, who had settled upon a Herefordshire living (writ- 
ten during the first five or six years of his bar life), contains a 
commission to send up a hogshead for his own or his friends' 
behoof, or records the receipt of one. We have detected also 
occasional notices, occurring here and there in postscripts, re- 



484 LORD CAMDEN. 

specting the transmission to the Temple of hares, woodcocks, 
and oilier such desirable products of the plains of Herefordshire. 
Like many other distinguished persons, he was throughout his 
life a great reader of novels, his taste for which extended itsel 
even to the interminable and now forgotten tomes of Scuderi : — 
the Grand Cyrus and Philidaspes furnished many an evening's 
repast, after the weightier matters of the law had occupied the 
morning. He was also, at least before law un-harmonized him, 
a professed votary of Euterpe ; and we have him recommending 
his friend Davies, who was planning an opera to be set to music 
by Handel, to "lie upon his oars" until he, Pratt, could give 
him directions as to the genius of musical verse, the length of 
the performance, the numbers and talent of the singers, the posi- 
tion of the choruses, and all the details of an accomplished adept 
in the science of harmony. Many of the literary men of his 
time enjoyed an intimacy with him. Among them was Garrick, 
who was not a little vain of the distinction. He accosted Bos- 
well in the street one morning — " Pray now, did you — did you 
meet a little lawyer turning the corner, eh?" " No, Sir," said 
Boswell ; " pray what do you mean by the question ?" " Why," 
replied Roscius, with an affected indifference, yet as if standing 
on tiptoe, — *' Lord Camden has this moment left me. We have 
had a long walk together." — "Well, Sir," pronounced Johnson 
on hearing the story, (Johnson, as Sir Joshua Reynolds observed, 
considered Garrick in a manner his own property, and would 
allow nobody either to praise or blame him without contradict- 
ing them), "Well, Sir, Garrick talked very properly. Lord 
Camden was a little lawyer, to be associating so familiarly with 
a player." Poor Goldsmith, whose happy vanity set him down 
in his own esteem as the prime object of interest and admiration 
in whatever company he graced with his presence, was sadly 
piqued that Lord Camden, whom he met at Lord Clare's table, 
did not render him due homage. " He took no more notice of 
me," complained the doctor, " than if I had been an ordinary 
person." The general courtesies of society did not compose a 
condiment sufficiently piquant for Goldsmith's taste, which hun- 
gered for the more highly-seasoned dishes of compliment and 
flattery. 

Lord Camden was in stature below the middle size. His full 



LORD CAMDEN. 485 

fair-complexioned countenance, blue eye, and clear open brow, 
were more expressive of a frank good-humour than of profundity 
of thought. He was subject, as we have before stated, to occa- 
sional attacks of gout, which did not however make such a 
martyr of him as of Thurlow. We are told he was particularly 
afraid of catching the small-pox, which he had never had ; espe- 
cially when Lord Waldegrave died of it, on which occasion he 
fled from its dangerous neighbourhood into the country. He 
long survived, however, all these apprehensions, and sunk at 
length only under the gentle and gradual pressure of old age. 

Our readers, we fear, will have had too much reason to com- 
plain of the absence, in these pages, of those traits of personal 
portraiture, those lesser lights and shades of individual habits 
and «iamiers, which constitute after all the life and soul of bio- 
graphy. But no kindred or friendly pen has been employed to 
lay before the world, like a North or a Boswell, with all the 
freedom and detail of familiar intercourse, the daily doings of 
Lord Camden's private life, and all the minute picture of his 
thoughts, his habits, his peculiarities, and his foibles ; nor have 
the outpourings of his heart, as in the case of Cowper, been 
unveiled to us in his familiar correspondence : few of his letters 
are in print, but they are such as to make us wish for more. 
We are driven, therefore, to seek such memorials of him as are 
to be found scantily dispersed over the memoirs and reminiscences 
of his contemporaries. Had his nephew, Mr. Hardinge (the 
Welsh Judge), lived to fulfil a promise he made to the kte Mr. 
Nichols, of furnishing a memoir of his uncle for the "Literary 
Illustrations," we might have had a far richer mine of anecdote 
and interest to work into : as it is, we have some apprehension 
that our sketch may less resemble a faithful portrait, exhibiting 
the features and expression of its original, than a figure in an 
indifferent caricature, whose identity is made known chiefly by 
the quotation that issues from its mouth. 

Besides the two pamphlets we have already mentioned as 
being attributed to Lord Camden, he avowed himself to Mr. 
Hargrave the author of a tract entitled "An Inquiry into the 
Process of Latitat in Wales," printed in that gentleman's col- 
lection of law tracts. Like many others of our most eminent 
lawyers, he never applied his powers to the production of any 



486 LORD CAMDEN. 

work of permanent utility and importance. Nevertheless, his 
name will not yet perisli. As a lawyer, his authority continues 
to be held in reverence by the profession ; as a politician, his 
memory must be honoured while independence and public worth 
are valued among Englishmen ; as a man, his virtues are em- 
balmed in the affectionate remembrance of the few who yet sur- 
vive to cherish the memory of his friendship. 



LORD THURLOW, 



Edward Thurlow was born some time between the years 
1730 and 1735, at the village of Little Ashfield, otherwise called 
Badwell Ash, near Stowmarket, and about midway between 
Bury and Diss, in Suffolk. His father, the Reverend Thomas 
Thurlow, was at that time vicar of the parish, which he after- 
wards quitted for the rectory of Stratton St. Mary's, in Norfolk. 
The income derived from each of these livings was not by any 
means considerable, and as there were three sons to be put for- 
ward in the world, they of course could not expect any very 
great pecuniary assistance from him. Indeed, he used con- 
stantly to say that a good education was all he could afford to 
give them, and their prosperity in life must depend altogether 
on the use they might make of it. As far as Edward was con- 
cerned, he was wont to add, he had no fears or apprehensions, 
for he was very sure he would manage to fight his way. Edward 
eventually gave full proof of his ability to fulfil this prediction, 
whether it was meant in a figurative or a literal sense. 

After going through the common routine of youthful education, 
pardy under the eye of his father, and partly at Bury grammar 
school, he was sent to Caius College, Cambridge. His acade- 
mical career, however, did not furnish any very hopeful prog- 
nostics of his future success in the world. While he remained 
at the university, he was much more often seen lounging at the 
gates of his college, or figuring in a convivial symposium, or 
loitering in some of the coffee-houses then frequented by the 
under-graduates,than attending in the chapel or the lecture room ; 
and his frequent breaches of academic discipline made him tole- 
rably familiar with the impositions, confinements to gates and 
bounds, privations of sizings, and other such punishments as are 
awarded, by the parental tenderness of Alma Mater, to those of 
her sons who presume to disregard the rules she has prescribed 



488 LORD THURLOW. 

for their government. It was the infliction of one of these ten- 
der mercies that indirectly became tfie occasion of his quitting 
the university. He was summoned, by no means for the first 
time, before the dean of his college, respecting some irregularity 
he had been guilty of (probably a neglect of the stated attend- 
ances at chapel, whicli is a misdemeanor that comes peculiarly 
within the cognizance of that functionary), and, not for the first 
time either, was required to expiate his offence by executing one 
of those extraordinary tasks, fiimiliar to careless or refractory 
under-graduates by the name of impositions. The penalty im- 
posed was, that he should translate a paper of the Spectator 
into Greek. There was no appealing against this decree ; no 
resource but submission ; and the conditions of atonement were 
accordingly fulfilled by the performance of the exercise. But 
young Thurlow, though he so far complied with the order of the 
dean, could not j'esist the opportunity of showing that he enter- 
tained no great respect for him, whatever obeisance he might 
be under the necessity of paying to his office. When, therefore, 
the task was completed, instead of carrying it, as is usual, to him 
who had imposed it, he left his paper with the tutor. The 
reverend dispenser of punishments looked upon this as a breach 
of respect that called for a much more severe infliction ; and he 
had recourse to a proceeding seldom adopted but in very aggra- 
vated offences : he caused the delinquent to be convened before 
the master and fellows of the college. It most frequently hap- 
pens that a summons to appear before this solemn tribunal is but 
the prelude to rustication at least, if not to expulsion ; and cer- 
tainly, in the present instance, the culprit did not comport him- 
self in a manner likely to mitigate the usual severity of its sen- 
tences. Being asked what he had to say in extenuation of the 
enormity he had been guilty of, he very coolly answered, that 
his conduct with respect to the delivery of the imposition had 
been entirely prompted by compassion and consideration for the 
worthy dean, who, he was very sure, could only have been 
sorely puzzled by the receipt of any thing written in a language 
he was so little conversant with as Greek. This apology, it 
may very readily be imagined, was something worse than the ori- 
ginal offence. The ire of the dean was now implacable. Rustica- 
tion was too light a punishment for so gross an indignity. Expul- 



LORD THURLOW. 489 

sion began to be talked of ; and matters might have assumed a more 
serious aspect than had probably been contemplated at first, had 
not the tutor been disposed to advocate lenient measures. Prin- 
cipally through his mediation, it was finally decided that the 
offender should merely be recommended to take his name off the 
books of the college ; a recommendation which an under-graduate 
of either university can no more disregard, than an officer of the 
army or navy can aflject to overlook an intimation that her ma- 
jesty, having no further occasion for his services, has been 
graciously pleased to give him the liberty of withdrawing from 
the service. Thurlow accordingly quitted Cambridge without a 
degree. 

In enabling him to leave the university upon no harder terms, 
the tutor of Caius (Dr. Smith, who afterwards became master) 
could have as little prospect that the young gownsman would 
find an opportunity of returning the favour, as the lion in the 
fable could have foreseen the emergency which made him glad 
to profit by the gratitude of the mouse. Nevertheless, among 
the many vicissitudes of life, it did so happen that the refractory 
disciple, thus discarded from the bosom of Alma Mater, became 
Lord Chancellor of England ; and in that capacity he took oc- 
casion to reward the friendly interference of Dr. Smith, by 
causing him to be appointed Chancellor of the diocese of Lincoln. 
It is said that the dean himself was also made to feel the bene- 
ficial influence of his patronage. This story, it must be owned, 
has somewhat of an apocryphal appearance, and at all events we 
cannot take upon ourselves to vouch for its authenticity. How- 
ever, we give it as it comes to our hands. It seems, then, that 
on one of the numerous occasions when Thurlow had been sum- 
moned before him, the language and mannerx)f the under-graduate 
had been much less respectful than was pleasing to the reverend 
corrector of backslidings, who had interrupted him rather sharply 
with the question — " Pray, sir, do you know to whom you are 
speaking?" bidding him at the same time to recollect that he was 
in the presence of no less a personage than the dean of the col- 
lege. This hint was not lost upon Thurlow; and every sen- 
tence he addressed to him, both then and at other times, was 
gravely prefaced with the invocation of " Mr. Dean." This 
was a species of banter doubly displeasing to the owner of the 

32 



490 LORD THURLOW. 

title, because he could not with any show of consistency appear 
to be oflfended by it. So deep an impression, indeed, did the 
annoyance leave upon liis mind, that on meeting casually with 
the inflictor of it several years afterwards, when he had risen to 
be Attorney-General, and on being addressed by him as Mr. 
Dean, he is said to have left the room without making any 
answer, conceiving nothing short of an insult could be intended. 
When, however, the Attorney-General had become Chancellor, 
the divine received a summons to wait on him, which he obeyed, 
we may imagine, with about the same reluctance that his bro- 
therhood of the cloth usually feel to intrude themselves on the 
notice of the chief dispenser of church patronage. The Chan- 
cellor's first salutation to him was : " How d'ye do, Mr. Dean ?" 
" My Lord," he observed, somewhat sullenly, " I have quitted 
that office. I am no longer Mr. Dean now." " Well," replied 
his lordship, " then it only depends upon yourself to be so, for 
I have a deanery at my disposal, which is very much at your 
service." 

The reputation Thurlow had acquired at the university was, it 
may be supposed, that of a mere idler. It appears, however, that 
notwithstanding the sort of life he then led, the time he spent 
on the margin of Camus was not altogether thrown away. The 
loss of a day devoted entirely to pleasure was sometimes made 
up for by the greater part of a night consumed in study; and 
though, as he had never aspired to academic honours, he had 
been at no pains to approve himself a sedulous student before his 
tutor, he was known by such as were intimate with him at that 
time to possess a very respectable stock of classical learning. 
Much stress is not to be laid on the testimony borne by Bishop 
Horsley to this effect, because (without adverting to the suspi- 
cious quality of eulogies bestowed by a churchman upon a living 
Chancellor, even an ex-Chancellor) the testimony is contained 
in a dedication, which, from time immemorial, has been privi- 
leged ground for the indulgence of a kind of poetical license in 
the description of the learning, talents, and virtues of the per- 
sons to whom such productions are addressed. But general 
report has also given him the credit of a considerable intimacy 
with the works of the ancient authors. If the reputation be un- 
deserved, he can very well afford to dispense with it. 



LORD THURLOW. 491 

When he removed to the Temple, which he did shortly after 
quitting Cambridge, he was not much more careful about keep- 
ing up the character of a hard reader than he had been at the 
university. There also he passed for an idler ; and it is very 
certain that during at least a portion of his studentship he well 
deserved the character. The poet Cowper, who was one of his 
associates at the time, has attested this fact in a way that leaves 
no doubt of its being true; since he gives his account in a fami- 
liar letter, not intended, like his poetry, for the eye of the public. 
"I did actually live three years," he says, " with Mr. Chapman, 
a solicitor, that is to say, I slept three years in his house ; but I 
lived, that is to say, I spent my days, in Southampton-Row, as 
you very well remember. There was I, and the future Lord 
Chancellor, constantly employed from morning till night, in 
giggling and making others giggle, instead of studying the law." 
It cannot be supposed, however, that Thurlow continued very 
long to lead this sort of life. Though the reputation of indolence 
certainly did continue to cling to him, it is probable that, later 
in his career, his want of application might be more apparent 
than real. He was fond of society ; he had no particular an- 
tipathy to that mighty instrument of conviviality, the bottle; and 
a great part of the time he thought fit to devote to relaxation 
from study was passed at coffee-houses and taverns, and other 
such places of public resort, where the fact of his being for the 
time idle was visible to every one who entered. Had he been 
given to music, or to novel reading, or to any other occupation 
that would have kept him in his chambers, he might have had 
credit for great application, without perhaps bestowing half so 
many hours upon his books as he actually no doubt was in the 
habit of doing. The same would probably have been the result, 
had his loiterings and his potations been confined to the houses 
or the chambers of his acquaintance. But in his daymen lived 
much more in public than they do at present, or have done 
since the beginning of this century. Bachelors, who wished for 
male society in the evening, commonly sought it in a cofi^ee- 
house (a practice long since entirely exploded), and parties of 
good fellows in particular seldom thought of sacrificing to 
Bacchus elsewhere than in a tavern. Now just in the same 
manner as a. student of our time (even one of that class which is 



492 LORD THURLOW. 

and always has been sufficiently numerous to countenance the 
derivation of the word a non studendo)^ may gain a high cha- 
racter for diligence with certain superficial observers of his pro- 
ceedings, simply because they seldom meet with him abroad, 
and fondly imagine that he cannot possibly be employed at home 
otherwise than in hard reading; it was possible that, in those 
days, one who really devoted a great part of his lime to study, 
but spent the rest of it as it were before the public, might with 
equal injustice be looked upon as a hopeless idler. In all proba- 
bility, Thurlow was in the latter predicament. The late Mr. 
Cradock, who was intimate with him at the time, assures us he 
never called at his chambers in a morning, without finding him 
engaged over his books. This testimony to his diligence is, so 
far as it goes, direct and unequivocal. There is a piece of cir- 
cumstantial evidence, however, to the same effect, on which we 
are disposed to place still more reliance ; and that is the manner 
in which he was found to acquit himself, when his legal know- 
ledge came to be put to the test in practice. It is true the fact 
of eventual success at the bar, or even of high character for 
learning (which is not always the only or even the chief instru- 
ment of success), cannot, generally speaking, be taken as a deci- 
sive proof of assiduity during the regular period of studentship ; 
because it most frequently happens that those who do gain such 
a reputation have abundance of leisure and opportunity to ac- 
quire the materials for it, between the time of their being called 
to the bar, and the time of their getting into that sort of practice 
which is likely to put them forward in a conspicuous situation. 
But this was not altogether the case with Thurlow. It was his 
lot to remain but very hw years in the briefless state of proba- 
tion, in which some of the greatest men our bar has produced 
have lingered so long ; and, as we shall presently see, his adven- 
turous spirit prompted him to take the place of a leader, almost 
at his very first starting into notice as a counsel. 

From the registers of the Inner Temple, it appears that he 
was admitted a member of that society on the 9th of January, 
1752,* and called to the bar on the 22d of November, 1754. 

' * We suspect an error ia this entry, and are inclined to think he 
became a member of the Inner Temple at an earlier period. In one of 
the memorandum books, he is put down as having come into commons 



LORD THURLOW. 493 

This could only have happened in the case of his name having 
been previously entered on the books of one of the other inns of 
court. Considering the length of probation many, if not most, 
young barristers have to go through, before they can get fairly 
launched into the stream of practice, the time that elapsed be- 
tween his first embarking in the profession, and his coming into 
full business, cannot certainly be called a very long one. It was 
long enough, however, to give him some taste of the bitterness 
of hope deferred ; the rather that he looked forward to the hold- 
ing of briefs as a means of earning subsistence as well as fame. 
His mode of living had always been irregular, and his expenses, 
though not perhaps very large, sufficiently so to outpass the 
narrow bounds of the stipend his father could afford to allow 
him. This being so during his studentship, the ease was not 
likely to be altered for the better while he remained an unem- 
ployed counsel, because to the same motives that had before ac- 
tuated him, might then be superadded the vague expectation 
that a few well endorsed briefs could at any time enable him to 
repair the deficiencies of his purse or his credit. While he was, 
no doubt, devoutly wishing for this consummation, the state of 
his exchequer often reduced him to no small straits. It is told 
of him in particular, that being once upon circuit, he found it a 
matter of necessity to reduce his charges to the shortest possible 
span, in order to bring tliem within the very moderate compass 
of his finances. One device he hit upon for this purpose was 
to have the effect of abridging them by a tolerably considerable 
item, namely, the hire of a horse for the journey. To perform 
it on foot, however, formed no part of his plan ; his determina- 
tion being in fact to attempt no less a feat than the matching of 
his own wits against those of a horse-jockey. Big with this re- 
solve he repaired to the stables of a dealer, and announced his 
intention of making a purchase out of his stud. After finding 
fault first with one and then with another of the beasts brought 
out for his inspection, and showing the man he v/as by no means 

in Hilary, 1751, and if this be correct, he must of course have been a 
member some time previous. He is described in the entry as "Ed' 
vardus Thurhw, generoms, (generosus being law or dog latin for gentle- 
man,) filius el hceres apparens Thoma TJwrlow, de Strallon St. Mary, in 
comitatu Norfolk, Clerici. 



494 LORD THURLOW. 

such a customer as would put up with anythiug that was oflered, 
he at length fixed upon a steed which, so far as he could judge 
from its appearance, he said, seemed very likely to suit him as 
to quality and price ; but he could not make up his mind to 
conclude the bargain without a trial. The proprietor having 
nothing to say against this, Thurlow was forthwith mounted, 
and went on his way, rejoicing in the success of his scheme. 
When the time appointed for the trial (and perhaps something 
more) had elapsed, the chapman beheld his customer riding into 
the yard, and already thought he held the stipulated number of 
guineas within his clutch. But he soon found that he had reck- 
oned, as the saying is, without his host. The horseman turned 
uporj^him a countenance betokening the extreme of ire and indig- 
nation, which emotions, as he in no very measured language 
speedily gave it to be understood, had been kindled within his 
breast by the shambling paces, touched wind, and other faults 
innumerable of the Bucephalus. Indeed, the attempt to palm off 
such an animal upon him, had disgusted him to that degree, that 
he was determined he would have no dealings with a fellow 
who could endeavour to practise so gross an imposition. 

Some years elapsed before the profits of his profession placed 
his finances in any better condition than that which drove him 
to such expedients. The first occasion of his coming into any 
notice, if not of his being employed at all, was a cause in which 
Luke Robinson was plaintiff, and the Earl of Winchelsea de- 
fendant. He happened to be opposed to Sir Fletcher Norton, 
who was at that time the leading counsel in the King's Bench, 
and, like some other leaders we could name, was very fond of 
treating juniors with superciliousness and rudeness. Some at- 
tempt of the kind he made upon Thurlow ; but Thurlow was 
not a man to put up with an affront in silence, and he read the 
knight such a lesson as might well make him much more cau- 
tious how he ventured to display his arrogance for the future. 
The circumstance was a great deal talked of among the bar, and 
the spirit of the young man was universally applauded by his 
brethren. But the display he had made was not the sort of one 
that necessarily brings business after it, and his first introduction 
into the career of professionnl success was due to quite a differ- 
ent cause, to one of those lucky chances, in fact, that many a 



LORD THURLOAV. 495 

first-rate lawyer has looked back to as the foundation of his for- 
tune, and for the want of which, no doubt, many a man whose 
ability might have done credit even to the bench, has been 
doomed to pass his life in obscurity and inaction. 

A favourite evening lounge of Thurlow's, and indeed of a 
great many barristers of every age and standing, was Nando's 
coffee-house,, hard by the Temple, the landlady whereof held 
forth two very potent temptations to insure their constant at- 
tendance ; being notorious herself for a nice hand in the admix- 
ture of the different ingredients that compose a bowl of punch, 
and having, to dispense the same, a well favoured daughter, 
whose attractions, as the small wits used to remark, were always 
duly admired " at the bar and by the bar." At the time, of which 
we have now to speak, and which was somewhere about the 
year 1760, the disputed heirship to the titles and estates of the 
late Duke of Douglas was a very common topic of conversation 
in most companies, and not the least so among the members of 
the bar, some of whom had already been engaged on behalf of 
the respective claimants. The reputed son of Lady Jane Douglas 
(or rather Lady Jane Stewart, for she had been married to Sir 
John Stewart of Grandtully) had lately been declared by the . 
Court of Session in Scotland to be a supposititious child. This 
decision, it must be owned, had been founded on a very strong 
mass of circumstantial evidence ; but the curators of Lady Jane's 
son were satisfied they had good grounds for expecting to suc- 
ceed in an appeal, and preparations were then making to bring 
the case before the House of Lords. Counsel had been already 
retained on behalf of the appellant ; but before the briefs could 
be drawn, there was an immense body of documentary evidence 
to be sifted and methodized, and on account of the importance 
and the difficulty of this task, it was determined that, instead of 
devolving as usual upon the attornies, it should be entrusted to 
counsel. Those whowere already engaged in the cause posi- 
tively refused to take this laborious and unusual duty upon them- 
selves ; and it so happened, that the difficulty which had thus 
occurred was a subject of discussion among some of them one 
evening at Nando's, when Thurlow, according to his wont, was 
in attendance there. The thought of employing him in the cause 



496 LORD TIIURLOW. 

had never, till that moment, occurred to any one counected with 
it ; nor indeed was there much likelihood that he should be se- 
lected from among numbers of greater standing and repute than 
himself. But fortune favoured him. He had the advantage of a 
lucky combination of circumstances : first, that such a difficulty 
should occur; secondly, that it should be seriously discussed in 
a cofTee-house ; and thirdly, that he should be upon the spot, and 
present before the eyes of those who were discussing it, just 
at the time when their only anxiety was to pitch upon some 
barrister with leisure and abihty to do what was required. The 
consequence was, that he was invited at once to undertake the 
arrangement of the papers ; and that partly from professional 
etiquette, and partly from the masterly manner in which he 
performed this duty, a brief was afterwards delivered to him 
in the cause. This event was the foundation of his success at 
the bar. 

The appeal was not entered in the Journals of the House of 
Lords till March 1762, and the great Douglas cause, as it was 
called, did not come on for a hearing before the nineteenth of 
January, 1769 ; but before the first of these stages had arrived, 
that change had taken place in Thurlow's condition, by means 
of which he was enabled to climb the eminence he afterwards 
reached. The task he had undertaken with respect to the ar- 
rangement and selection of the papers in the Douglas appeal, 
brought him into contact with several persons of rank and influ- 
ence who were more or less directly interested in the event of 
the cause. Among the rest was the old Duchess of Queens- 
bury, the well known friend of Pope and Gay and Swift, and 
the other worthies of Anne's reign ; and what was more to Thur- 
low's purpose, the friend also of some who had the ear of the 
young king, George the Third. To her influence with Lord 
Bute, then in the very zenith of favour, the unknown and 
hitherto briefless lawyer was indebted for a sort of promotion, 
which most barristers of his standing would probably have 
avoided as the death-blow of their practice, but which he courted 
as the means of bringing him at least into some degree of notice, 
and affording him opportunity for the display of his acquire- 
ments, to be attended with signal failure or signal success. He 



LORD THURLOW. 497 

was made king's counsel. This appointment took place at the 
close of the year 1761, and on the 29th of January in the follow- 
ing year he was called to the Bench of the Inner Temple. 

The bold and hazardous measure, of exchanging the stuff 
gown for the silk, was attended, in the case of Lord Thurlow, 
with complete success. If he had not that minute knowledge 
of the details of the law, which is only to be acquired by long 
practice either under the bar or as a junior counsel, he had other 
qualifications which stood him in good stead as a leader, a ca- 
pacity, indeed, for which he appears to have been much better 
fitted than for the probationary state of subordination that com- 
monly serves as a stepping-stone to it. One indispensable 
quality he possessed in a very remarkable degree, and that was 
a thorough confidence in his own powers. The embarrassment 
occasioned by timidity was totally unknown to him. No one 
ever observed him to falter or to hesitate from a dread of the 
learning and experience of his opponents, or of his own inability 
to cope with them ; and if any one ever did conceive a doubt of 
his capability, it certainly could not be because he himself set 
the example. "A moderate merit," Lady Mary Wortley Mon- 
tague very sensibly tells her husband, " with a large share of 
impudence, is more probable to be advanced than the greatest 
qualifications without it." Thurlow was certainly very fully 
impressed with the truth of this maxim, which indeed his 
brethren in general have the character of not being much inclined 
to undervalue. Not that we would be thought to apply the 
epithet impudent to him, in the invidious sense of the term, im- 
plying, as we conceive it does, a certain degree of pretension 
without the power to make it good; but giving to the word its 
more lenient meaning, and supposing it to mean neither more 
nor less than that he who deserves to be so called is not likely 
to let his merits be thrown into the shade by his bashfulness, 
there can be no pretext for denying that Edward Thurlow was 
a thoroughly impudent man. If, however, to prevent any mis- 
conception on this score, the reader will take the trouble to put 
the word confidence in the place of impudence, we know not 
how we can better describe what we consider to have been his 
leading principle through life than by borrowing another passage 
from the same admirable letter we have just quoted. " The 



498 LORD THURLOW. 

first necessary qualification," then, writes Lady Mary, "is im- 
pudence, and (as Demosthenes said of pronunciation in oratory) 
the second is impudence, and the third, still impudence. No 
modest man ever did, or ever will, make his fortune. Your 
friends Lord Halifax, Robert Walpole, and all other remark- 
able instances of quick advancement, liave been remarkably 
impudent. The ministry is like a play at court; there's a little 
door to get in, and a great crowd without, shoving and thrusting 
who shall be foremost; people who knock others with their 
elbows, disregard a litde kick of the shins, and still thrust 
heartily forwards, are sure of a good place. Your modest man 
stands behind in the crowd, is shoved about by every body, his 
clothes torn, almost squeezed to death, and sees a thousand get 
in before him, that don't make so good a figure as himself." 

If this quality be of essential service in a court of law, there 
is another arena, where it is, to say the very least, of quite as 
much effect; and that is the House of Commons. Here Thur- 
low first entered by being returned for Tamworth, at the general 
election in 1768 ; and he speedily took a footing as a member 
of parliament, that stood him in more stead, when there came to 
be a question of his promotion, than any degree of success in 
the courts of law could have been likely to do. To the leader 
of a party such a member as Thurlow is invaluable. No one 
could more unhesitatingly deal forth a good round assertion, or 
more unflinchingly disclaim the aid of everything like qualifica- 
tion, or more unsparingly bestow tokens of his contempt upon 
those who had the misfortune to differ with him. For this sort 
of duties, if duties they may be called, he had a physical as well 
as a moral fitness. A dark complexion, harsh though tolerably 
regular features, eyes overshadowed by thick and bushy brows, 
a sonorous and deep-toned organ of speech, all imparted to his 
appearance and to his delivery a degree of sternness, not to say 
actual ferocity, well calculated to heighten the effect of that kind 
of oratory in which he most excelled and most delighted. 
These, however, were only his peculiarities, which distinguished 
him from every successful public speaker of his time. Other 
qualities, of course, he must have possessed in common with 
them, or he could never have ranked as one of their number. 
Possessing such capabilities, he was singled out by Lord North, 



LORD THURLOW. 499 

on the formation of his ministry in the beginning of 1770, to 
take the place of Solicitor-General, which had been just re- 
signed by Dunning; and the year afterwards (1776), when the 
post of Attorney-General became vacant, he as a matter of course 
was called upon to fill it. In this office he succeeded Sir Wil- 
liam De Grey, afterwards Lord Walsingham. 

It was a memorable and a stormy session, that in which 
Thurlow, as the avowed partizan and in some sort one of the 
official organs of the ministry, first took his place in the House 
of Commons: the same session, it is worthy of note, in which 
Charles Fox commenced his parliamentary career. Those dis- 
contents were then at their fullest height, which furnished the 
leading spirit of the opposition party in the House of Commons 
with the theme of one of the most masterly of his compositions, 
and gave Samuel Johnson the occasion of writing his much in- 
ferior production, "The False Alarm." All minor grievances, 
however manifold, were, as Junius, the fomentor and the organ 
of popiilar excitement, remarks, rendered comparatively insig- 
nificant by the importance of the great attack upon the constitu- 
tion in the case of the Middlesex election. But this main cause 
of dissatisfaction did not entirely absorb the public attention. On 
the contrary, the clamour once raised, it was to be feared no op- 
portunity would be neglected to swell and to prolong it; no abuse 
of power, real or imaginary, would be suffered to remain unde- 
tected and unmagnified. The ministry, therefore, though they 
had not immediately much to dread from the minority opposed 
to them within the walls of parliament, had still need of all their 
resources to maintain their footing. Parliament, however, was 
prorogued very shortly after Thurlow's appointment to the soli- 
citor-generalship, so that it was not till the ensuing session, 
which commenced on the thirteenth of November, that he found 
an. opportunity of fairly taking up the cudgels in behalf of his 
party. That opportunity was afforded him by the violent debate 
that took place on the address, in which the subject of the Attor- 
ney-General's power to file ex officio informations for libel was 
descanted upon with a warmth and asperity, corresponding to 
the violence of the excitement that had been recently kindled by 
the prosecution of Almon for the publication of Junius's letter to 
the Kinff. The Solicitor-General was of course one of the de- 



500 LORD THURLOW. 

fenders of this privilege, and certainly not one of the least 
strenuous. His speech on this occasion, as it is reported in the 
Parliamentary History, does not, it must be owned, give us any 
very exalted opinion of his ability as a reasoner; though we are 
by no means sure that, considering the temper of the times, its 
sweeping assertions, its flat denials, and lofty and arrogant tone, 
may not have been better calculated for his purpose than any 
series of arguments he could have put together with the same 
end in view. He would allow no purer motive to the opposi- 
tion than the desire of courting ephemeral popularity, affecting 
to believe it impossible that reasonable men could conscientiously 
deny the expediency and even the necessity of such a preroga- 
tive as that exercised by the Attorney-General. As to the charge 
often brought, and renewed against the then judges, particularly 
Lord Mansfield, respecting their mode of directing juries in 
cases of libel, he stigmatized it as utterly groundless and absurd. 
"The construction of libels," he said, "belongs by law and pre- 
cedent to the judge, not to the jury ; because it is a point of law, 
of which they are not qualified to judge. If any other rule 
prevailed, if the matter was left to the jury, there would be 
nothing fixed and permanent in the law. It would not only vary 
in different counties and cities, according to their different inter- 
ests and passions, but also in the minds of the same individuals, 
as they should happen at different times to be agitated by dif- 
ferent humours and caprices. God forbid that the laws of Eng- 
land should ever be reduced to this uncertainty! All our 
dictionaries of decisions, all our reports, and Coke upon Little- 
ton itself would then be useless. Our young students, instead 
of coming to learn the law in the Temple and in Westminster 
Hall, would be obliged to seek it in the wisdom of petty juries, 
country assizes, and untutored mechanics. Adieu to precision, 
adieu to consistency, adieu to decorum ! All would be confusion, 
contradiction, and absurdity : the law would, like Joseph's gar- 
ment, become nothing but a ridiculous patchwork of many 
shreds and many colours, — a mere sick man's dream, without 
coherence, without order, — a wild chaos of jarring and hetero- 
geneous principles, which would deviate farther and farther from 
harmony." This is a fair specimen of the strength of argument 
he brought to bear upon the question. The prophecy, as to the 



LORD THURLOW. 501 

consequences of the catastrophe he thus called upon God to 
avert, is of a piece with the rest; but from the very fact of its 
being a prophecy, it was secure at the time from a positive and 
flat denial. That denial the experience of some twenty years 
and more may now safely give. Books of reports, and diction- 
aries of decisions, aye, even Coke upon Littleton itself, still hold 
their ground as firm as ever; and if petty juries and untutored 
mechanics have gathered to themselves ever so strong a muster 
of legal pupils, we certainly do not find that the inns of court 
have suffered any very considerable diminution of members in 
consequence of so formidable a competition. 

In the debate that took place on Serjeant Glynn's motion for 
an inquiry into the administration of criminal justice, we can 
gather nothing from Thurlow's speech that approaches any 
nearer to sound argument, so far as regards the law of libel. 
Among other positions he broadly laid down was this: that 
even supposing a jury could be competent to decide upon the 
intent and meaning of a publication alleged to be libellous 
(which, however, he by no means admitted they could), there 
is an insuperable objection against trusting them with the power 
of doing so, because in state prosecutions their passions are 
often excited in a manner that renders them litQe better than 
parties concerned against the crown. How far it was probable 
that the passions or interest of a judge might make him a party 
against the freedom of the press and the liberties of the subject, 
was left entirely out of the orator's calculations, as a matter of 
too little importance to be taken into account. 

From the tenor of these opinions, it is easy to conceive what 
must have been the sentiments of Thurlow on such a subject 
as the war with America. On the issue of that war depended 
the fate of the ministry, and none of its adherents gave it more 
vigorous support than the Attorney-General. In the discussion 
of this, as of every other question that came before Parliament, 
he scorned everything like palliation or concession. The 
Americans, according to him, were traitors and rebels ; the 
mother country had a right to tax them to any extent she 
pleased ; and since they had been daring enough to contest this 
point, no middle course was to be pursued, no half-measures 
were to be adopted. It might suit the character of one of his 



502 LORD THURLOW. 

predecessors in office to contend that America could not reason- 
ably complain of not being fully represented in Parliament, 
since, being described in the original charter of the colony as 
part and parcel of the manor of Greenwich, its interests were 
confided to the care and protection of the members for Kent. 
But Thurlow disdained such wretched quibbling. He had made 
up his mind to espouse one side of the question, and he advo- 
cated the cause heart and soul, without scruple or reservation of 
any kind. Throughout all that portion of the great contest, 
during which he remained a member of the lower house, he 
was Lord North's most able supporter. The facetious premier 
used to take his seat on the Treasury bench, as Gibbon informs 
us, " between his attorney and solicitor-general, the two pillars 
of the law and state, magis pares quam similes, and the min- 
ister might indulge in a short slumber, whilst he was upholden 
on either hand by the majestic sense of Thurlow, and the skil- 
ful eloquence of Wedderburne." 

From the short specimens we have given of the notions he 
entertained on the subject of ex officio informations, it may 
readily be inferred that Thurlow w^as not likely to shrink from 
the exercise of an Attorney-General's most unpopular duty. 
The trial of Home Tooke, in 1777, was one of those conducted 
by him. We do not find, however, that he rendered himself 
more obnoxious to public censure, or incurred a greater share of 
odium for prosecutions of this nature, than the average number 
of his official brethren have been commonly wont to do. None 
of those which he instituted were of sufficient importance to 
preserve much interest at present. Of all the trials in which he 
was engaged, that which most excited public attention at the 
time was the trial of the Duchess of Kingston for bigamy. 

Very few women have ever made themselves more notorious 
than this eccentric personage had done in her youthful days. 
The history of her life has all the interest of a romance, and 
indeed may be said to bear out the correctness of Byron's 
apophthegm, that truth is stranger than fiction. Prints of her are 
still to be found in the costume (or to speak nearer the truth no 
costume, unless the slender covering of our first mother in the 
garden of Eden can be so termed) in which she appeared at a 
fancy dress ball given by the Venetian ambassador in London. 



LORD THURLOW. 503 

She was then the beautiful Miss Chudleigh, one of the maids of 
honour to the queen of George the Second. While she retained 
this situation she was privately married to the Hon. Augustus 
Hervey ; but having, as the story goes, detected a delinquency 
of a very peculiar nature committed by her husband, she re- 
nounced all connexion with him very shortly after their nuptials. 
Some time afterwards, she bethought herself that it would be 
advisable to destroy all evidence of the ceremony ever having 
been performed ; and accordingly, posting down to the village in 
Hampshire where it had taken place, she tore out the leaf from 
the parish register with her own hand. Upon his coming to the 
title and estates of Earl of Bristol, she changed her mind upon 
this score, and conceived it might be desirable to have the means 
of proving her marriage in case of need, for which purpose she 
got the register once more into her possession, and substituted 
an entry in her own writing for the one she had cancelled. 
When she had married and buried the DuTvC of Kingston, Lord 
Bristol being all the while alive, the heirs of his grace got infor- 
mation of this first match ; and as the dowager had been treated 
by the will much more liberally than comported with their 
interests, they resolved to establish the fact of bigamy. The 
lady was in Italy when the proceedings were begun, but she 
resolved on appearing to take the chances of her trial ; and 
having compelled her banker, pistol in hand, to deliver certain 
funds she was in want of for her journey, and which he was 
rather reluctant to yield, she arrived in London prepared to abide 
the event. As if she had not by this time furnished sufhcient 
matter of conversation for the gossips of the town, she next 
contrived to engage herself in a paper war with no other an 
antagonist than Samuel Foote. This unprincipled wit had 
come to the knowledge of some private incidents of her life, 
through the medium of a woman who had formerly been her 
confidante, and these he introduced into a play or farce, called the 
*' Trip to Calais," in which she was to be brought forward 
under the name of Lady Kitty Crocodile. When he had 
finished this notable performance, so that it was ready for the 
stage, he gave her an intimation of what he had done, and had 
the efi'rontery to ask two thousand pounds for the suppression of 
his libel. It is said he actually refused sixteen hundred. 



504 LORD THURLOW. 

Fortunately he was altogether foiled in his infamous plot, for 
the lord chamberlain refused to license the piece, and though he 
threatened to publish it, a counter-threat of an action at law 
made him abandon this project. Thereupon he wrote to inform 
the duchess that the affair was at an end, and she very foolishly 
published his letter, together with her own answer to it. This 
drew forth a reply from Foote, and in the encounter of their 
wits her grace certainly had not the best of it, although she laid 
aside ceremony so far as to inform him that she was writing to 
the descendant of a merry-andrew, and prostituting the name of 
manhood by applying it to him : whereas he chose rather to 
trust his pen with keen satire than with mere abuse. All this 
increased the excitement and anxiety as to her trial, which cre- 
ated even more general interest than that of the rebel lords had 
done thirty years before; the rather that their doom was toler- 
ably certain, and that hers remained in suspense. She herself 
was very sanguine in the expectation of an acquittal, relying 
upon a sentence formerly pronounced in the Ecclesiastical 
Court, in a collusive suit between herself and the Earl of Bristol, 
by which sentence she conceived their marriage had been 
declared void. This, however, was not precisely the fact. The 
suit had been merely one of jactitation of marriage, and the 
effect of the sentence was consequently nothing more than that, 
for any thing that had appeared before the court, there had been 
no marriage at all ; leaving the real fact open to further investi- 
gation on other evidence. This plea, as it were, of autrefois 
acquitte, consequently availed nothing, and the duchess was 
convicted by the House of Peers of bigamy, notwithstanding 
more than one very long speech of her own, in which she 
descanted very learnedly upon the law, quoted precedents in 
abundance, and, as maybe supposed, uttered no small quantity 
of nonsense. Had her situation and circumstances been any 
other than they were, she informed their lordships at the open- 
ing of her great oration, ' no words of hers should have beaten 
the air.' There were many other specimens of rant in her 
speech equally bombastic and absurd. We are Ntold that in the 
course of the proceedings she gave vent to her anger against 
Thurlow, who, as Attorney-General, conducted the prosecution, 
by publicly reproaching him with certain amours of his own, to 



LORD THURLOW. 505 

which he did not think it at all necessary to give the sanction 
of matrimony. If this be true, it is certain that nothing of the 
kind appears in the report of the case, though it appears very 
full and minute, even to the most trivial particulars. Possibly 
the rebuke may have been conveyed, as many pithy things are 
said on the stage, in an aside. The trial began on the 15th of 
April, 1776, and was concluded on the 22d, having lasted four 
days. 

It was about two years after this, that the resignation of Lord 
Chancellor Bathurst occasioned a vacancy in that seat, to occupy 
which is the utmost aim of a successful lawyer's ambition. 
Lord Mansfield had already more than once declined the great 
seal ; and no one had a stronger claim upon the minister than 
Thurlow. That claim was not disregarded. Though Lord 
North could ill spare him from the House of Commons, where 
he was his very ablest and most efficient coadjutor, he made no 
difficulty about removing him to the woolsack ; and accordingly, 
on the 2d of June, 1778, he was appointed Chancellor, being 
raised to the peerage on the same day by the title of Baron 
Thurlow, of Ash field, in the county of Suffolk. 

It may be remarked that, when a promotion of this nature 
takes place, there seldom fails to exist, among those who watch 
the career of the newly ennobled lawyer, a certain feeling of 
curiosity as to the footing he will maintain for himself, when he 
becomes fairly settled in the upper house. Men are anxious to 
know whether he, who commanded the respect and attention of 
his audience when he addressed the Commons, will be heard 
with equal complacency by the assembled Peers : whether they 
will welcome him to their ranks as a recruit who confers quite 
as much honour on their order as he receives from it, or whether 
they will treat him as a mere intruder into their body : and above 
all, should they endeavour to reduce him into insignificance, 
whether he will tamely submit, or manfully convince them that 
against him all such attempts are likely to prove abortive. It so 
happened, that not very long after his admission into the House 
of Lords, Thurlow had an opportunity of asserting his own 
dignity in this aristocratic assembly ; and he did it in a manner 
that at once took away from his brother peers all desire of call- 
ing it in question for the future. It was in the course of the 

33 



506 LORD THURLOW. 

inquiry inlo Lord Sandwich's administration of Greenwich 
Hospital (the same subject which had first called forth the bril- 
liant eloquence of Erskine in the Court of King's Bench) that 
the Duke of Grafton thought proper to taunt him \vith his hum- 
ble birth, and the recent date of his creation as a peer. The 
descendant of an illegitimate child of Charles the Second might 
have been fouglit with his own weapons, when he chose to take 
up the topic of the want of illustrious birth. But Tliurlow did 
not descend to this petty species of cavilling. He took much 
higher ground. "His Lordship," says Mr. Butler, who was 
present at the time, "had spoken too often, and began to be 
heard with a civil but visible impatience. Under these circum- 
stances he was attacked in the manner we have mentioned. He 
rose from the woolsack, and advanced slowly to the place from 
which the Chancellor generally addresses the house. Then 
fixing on the duke the look of Jove when he grasps the thunder, 
*I am amazed,' he said, in a level tone of voice, * at the attack 
the noble duke has made on me. Yes, my lords,' considerably 
raising his voice, ' I am amazed at his grace's speech. The 
noble duke cannot look before him, behind him, or on either 
side of him, without seeing some noble peer who owes his seat 
in this house to his successful exertions in the profession to 
which I belong. Does he not feel that it is as honourable to 
owe it to these, as to being the accident of an accident ? To all 
these noble lords the language of the noble duke is as applicable 
and as insulting as it is to myself. But I don't fear to meet it 
single and alone. No one venerates the peerage more than I 
do ; but, my lords, I must say, that the peerage solicited me, not 
•I the peerage. Nay more, I can say, and will say, that as a 
peer of Parliament, as speaker of this right honourable house, 
as keeper of the great seal, as guardian of his majesty's con- 
science, as lord high chancellor of England, nay, even in that 
character alone in which the noble duke would think it an affront 
to be considered, as a man, I am at this moment as respectable, 
— I beg leave to add, I am at this time as much respected, 
as the proudest peer I now look down upon.' The effect of 
this speech," Mr. Butler adds, " both within the walls of Par- 
liament and out of them, was prodigious. It gave Lord Thurlow 
an ascendancy in the House which no Chancellor had ever pos- 



LORD THURLOW. 507 

sessed : it invested him, in public opinion, with a character of 
independence and honour ; and this, though he was ever on the 
unpopular side in politics, made hitn always popular with the 
people." 

In private as well as in public, Lord Thurlow was equally- 
above the wretched and contemptible feeling, which so often 
prompts men to deny or gloss over the obscurity of their origin. 
His parents had been of that class in life which, in the literal as 
well as in the more commonly received acceptation of the term, 
is well entitled to the designation of respectable ; but they had 
no title to illustrious descent, and he had too much spirit or too 
much sense, or both, to claim any dignity from his ancestry. It 
is told of him that, when one of his acquaintance was endea- 
vouring to make out how he could claim kindred with the secre- 
tary of Cromwell, whose family had been settled in the county 
adjoining Suffolk, he interrupted the obsequious genealogist by 
telling him, in a tone and manner that would have befitted his 
contemporary, Johnson, — " Sir, there were two Thurlows in 
that part of the country : Thurloe the secretary, and Thurlow 
the carrier. I am descended from the last." It would have 
been well had he entertained on all points the same sound and 
healthy feeling which dictated this rebuke. But it was not 
always thus where his personal interest was involved. Super- 
ficial observers were wont to be misled in his case, as in many 
others, by the affected bluntness, or (to speak plainly) the down- 
right bearishness of his manner, which such persons' are apt to 
consider a certain indication of honesty and straightforwardness 
of purpose ; as if sincerity and politeness were so wholly incom- 
patible, that the want of the one must necessarily ensure the 
possession of the other. Whether all his coarseness were 
natural to him, or whether he exaggerated it for the purpose of 
humouring this vulgar prejudice, it is very certain that he was 
considerably the gainer by it in point of popularity. The poet 
of all ages, writing two centuries before Thurlow was born, has 
depicted this peculiarity of his as accurately as if he had sat for 
the portrait ; and the application is too obvious not to have been 
often made : — 

"This is some fellow, 



Who, having been praised for bluntness, doth afFect 



508 LORD THURLOW. 

A saucy roughness, and constrains the garb 
Quite from its nature. He cannot flatter, he ; 
An honest mind and plain ; he must speak truth ; 
And they will take it, so — if not, he's plain." 

Among the many who suflered themselves to be won over by 
this "saucy roughness," was one very worthy and excellent 
man, — more famous, however, for his merits as a virtuous hus- 
band and a skilful farmer, than for acuteness in the discrimina- 
tion of character, — namely, George the Third. The moral 
monarch even went so far as to overlook in Thurlow irregulari- 
ties which he could never pardon in Fox, so much was he cap- 
tivated by a virtue that, like charity, could cover a multitude of 
sins. Other courtiers had their smiles and their bows, but they 
were not the exclusive property of his Majesty ; whereas in the 
royal presence alone was the Chancellor's usual ruggedness sof- 
tened down into something like suppleness and amenity. We 
take no account of the caresses of a spaniel that licks the hand 
of all alike ; but the fondness of the mastiff for his master is 
valued because it is lavished on him alone, and forms a striking 
contrast with the surly growl bestowed on all besides him. 

This personal favour of the sovereign Lord Thurlow turned 
to the account of his own interest, by affecting to class himself 
among those persons, numerous enough in his lime, who were 
wont to style themselves the king's friends, and thought there 
could be no better mode of evincing their friendship than that 
of steadfastly retaining their offices through all changes of mea- 
sures or of ministry. " A new system," wrote Junius in those 
days, " has not only been adopted in fact, but professed upon 
principle. Ministers are no longer the public servants of the 
state, but the private domestics of the sovereign. One particular 
class of men are permitted to call themselves the king's friends : 
as if the body of the people were the king's enemies ; or as if 
his majesty looked for a resource or consolation in the attach- 
ment of a few favourites, against the general contempt and 
detestation of his subjects." The Chancellor, it is true, did not 
go the whole length of Lord Barrington, and certain other politi- 
cal vicars of Bray, whose favourite doctrine was, that every 
thing like opposition to the king's government for the time being 
was nothing less than faction, if not downright rebellion. But 



LORD THURLOW. 509 

if it was the king's good pleasure that he should remain in office, 
a change of party he did not by any means consider an insu- 
perable obstacle to the fulfilment of the royal will. This he 
very fully proved on the resignation of Lord North, in March, 
1782. The Rockingham party, who then reaped the benefit of 
their long and arduous opposition, might well have expected that 
the seals would be at their disposal. They however found it 
otherwise. The King insisted that Lord Thurlow should be 
suffered to remain where he was ; and showed himself so reso- 
lutely bent upon carrying this point, however easily he might 
cede others, that the leaders of the party had no alternative but 
compliance. The man, therefore, whose political existence was 
identified with unflinching advocacy of the war against America 
(only to mention one measure of the North administration), was 
now seen occupying a place in a cabinet which owed its birth to 
the failure of that war, and was under the most solemn obliga- 
tion to make the entire discontinuance of it one of its first min- 
isterial acts. 

The manner in which Lord Thurlow chose to act up to his 
assumed character of the king's friend, was certainly not calcu- 
lated to render him a very valuable ally to the Whig party. He 
seemed, indeed, to consider that he was placed in the cabinet 
rather in the capacity of a check upon their measures, than an 
active promoter of them ; and that the part he had to play was, 
not a supporter of his colleagues, but simply tlie guardian and 
the champion of royal prerogative against all its enemies, 
whether in the ranks of his colleagues or elsewhere. Thus, 
while the two ministerial bills (the one for preventing contractors 
from sitting in Parliament, and the other for prohibiting persons 
employed in the customs and excise from voting at elections) 
were passing through the upper house, Lord Mansfield himself, 
and the other avowed leaders of the opposition, were not a whit 
more strenuous than he in their endeavours to throw them out. 
There were some persons foolish and ignorant enough to dignify 
this sort of conduct with the name of independence. But men 
of sense could never fall into so gross a delusion. They might 
very well understand the independence of one who resigns 
office, power, and emolument, rather than retain them under a 
set of ministers against whom his political career had been 



510 LORD THURLOW. 

marked by uncompromising opposition ; nay, ihey might even 
go so far as to admit that, after liaving once consented to enlist 
among them, he might still claim some pretensions to the title 
of independent, by quitting their ranks and his own office so 
soon as he found them pledged to a course he could not conscien- 
tiously, or at least consistently, approve ; but they very naturally 
laughed at the notion of bestowing the appellation on one who, 
with all his show of consistency in opinion, held no opinion so 
firmly as the very common one, that all sacrifices were to be 
preferred to the sacrifice of office. As to the ministers them- 
selves, whose plans were thus thwarted by an enemy in their 
own camp, it may well be supposed the reluctance they had 
originally felt to admit him there was not likely to be dispelled 
by the line of conduct he thought fit to pursue. Indeed, when 
the coalition was formed between Fox and Lord North, the year 
after the birth of the Rockingham administration (February 
1783), the members of the new alliance agreed one and all that 
it was wholly out of the question for them to think of retaining 
so treacherous an ally in their body. The king, who was guided 
entirely by the counsels of Lord Thurlow, insisted on the other 
hand, that whatever changes might take place, (and he was ready 
to concede every other point,) the Chancellor should remain at 
his post ; and as this was an arrangement to which no induce- 
ment could prevail on them to give their consent, a considerable 
delay took place in the formation of the new cabinet. At length, 
however, George the Third found himself compelled to yield, 
and the Duke of Portland became the nominal premier, on the 
understanding that the great seal should be put in commission. 
Lord Loughborough, then Chief Justice of the Common Pleas, 
was accordingly appointed chief commissioner ; and Thurlow 
retired, to lie in wait for the next opportunity that might present 
itself of reinstating himself in the office he had thus struggled 
so hardly, but so fruitlessly, to retain. 

His impatience on this score was not put to a very severe test. 
The Coalition ministry, as every body knows, did not outlive 
the year in which it had its birth ; and its dissolution was of 
course the immediate prelude to his resuming his seat on the 
woolsack. It was only because there was absolutely no alterna- 
ve, that George the Third had consented to admit Fox and his 



LORD THURLOW. 511 

party into the royal councils : his confidence they never pos- 
sessed. Their personal intercourse with the sovereign was but 
barely as frequent as the occasions of the state demanded, and 
was then invariably marked by the extreme of coldness and re- 
straint on his part. When he found himself completely in their 
power, his despondence was so great that he remained in melan- 
choly seclusion at Windsor, lending no public countenance to his 
ministers, withdrawing himself from the gaze of the people,^ 
foregoing his accustomed sports and occupations ; in short, com- 
pletely overcome by dejection. Lord Thurlow was one of the 
very few visitors admitted at the castle during this retirement of 
the king, who, placing as he did entire confidence in the personal 
attachment, the integrity, and the ability of the ex-Chancellor, 
looked to him for solace and for counsel in the pressing strait to 
which he considered himself reduced. It is known that at one 
time he very seriously meditated, what he had more than once 
previously threatened, a retirement to Hanover, where there was 
no intractable House of Commons to thwart the free exercise of 
his royal pleasure. He was, however, dissuaded from the pro- 
ject by Thurlow, who consoled him with the assurance, that if 
Fox were left to himself, he would sooner or later suffer his 
natural impetuosity to hurry him into some step that would be 
the cause of his downfall as a minister. The prediction was 
very soon verified. The India Bill proved the rock on which 
the coalition vessel split. The royal influence was exerted in 
its very fullest extent to procure the opposition of the peers to 
this measure ; and Thurlow, who had been the most active of 
the managers behind the curtain, was not less great, as the the- 
atrical phrase is, when he appeared on the stage. He gave it 
out as his firm conviction, that if the king should assent to such 
a measure, he would do neither more nor less than take the 
crown from his own head to adorn the brows of Fox; a hint 
which Lord Abingdon improved upon, by openly taxing the ob- 
noxious minister with entertaining the views of Cromwell. Tha 
end of all this was, that the bill was thrown out by the peers. 
His majesty, unable to contain his satisfaction, immediately 
dispatched messages, at one o'clock in the morning (19th De- 
cember), to both the secretaries of state, North and Fox, inti- 
mating that he had no further occasion for their services, and 



512 LORD THURLOW. 

that as a personal interview would be disagreeable to him, ihey 
were required to send back their seals of office instead of deliver- 
ing them in the usual manner. On the following day, William 
Pitt, then not quite twenty-five years of age, was declared prime 
minister; and Lord Thurlow's appointment to the chancellor- 
ship immediately took place as a matter of course. He took 
this opportunity of putting one of his early associates, Kenyon, 
in the place of Attorney-General, though he had not gone through 
the probationary stage, at that time more usual than it has been 
since, of the solicitorship. This latter office was filled by Sir 
Pepper Arden. 

Great as afterwards became the popularity and the power of 
the new premier, it was with no small difficulty that he at first 
contrived to hold good his footing with Parliament. There the 
coalition still maintained all its influence. The opposition, in- 
deed, was at one time so strong, that he hinted to the king his 
fears that he should shortly be obliged to quit the field ; and it 
is said, was only prevented from doing so by the earnest dissua- 
sion of the monarch, who declared that if his minister resigned, 
he must resign also. The disgust, and indeed the dread, he felt 
of the opposition were certainly not lessened by Erskine's mo- 
tion for an address, calling on the sovereign to refrain from dis- 
solving the Parliament (which he was then just about to do), on 
account of the quantity of public business that still remained to 
be got through. George the Third, who on certain points of 
prerogative was hardly less touchy than some of his Stuart pre- 
decessors, looked upon this as a direct blow aimed at his kingly 
power, and felt quite as desirous as his ministers could wish 
him to be of nipping this dangerous scheme in the bud. It was 
accordingly very well understood that the Parliament was about 
to be dissolved, and it was known also, that the usual prelimi- 
nary prorogation would take place on a certain day, the 24th of 
March, 1784. Now, it was generally supposed that a dissolu- 
tion could not take place without the great seal ; and it so hap- 
pened that, on the very day before the prorogation, the great 
seal was stolen from the drawer of the writing-table in Lord 
Thurlow's private study, at his house in Ormond Street. The 
fact that nothing else was taken but the seal, was a sufficient 
proof that the theft was not the speculation of a common pilferer : 



LORD THURLOW. 513 

and, all circumstances considered, there seemed to be very plau- 
sible reasons for suspecting that some of the influential members 
of the Whig party were concerned in the affair. Whether there 
were really any foundation for such a suspicion, it is now im- 
possible to determine, as neither principals nor accessories were 
ever discovered, although a reward of two hundred pounds was 
off"ered by proclamation, with a promise of full pardon to the 
informer, if he was implicated in the transaction. One man 
was, indeed, apprehended for the theft; but whether guilty or 
not, sufficient evidence could not be procured against him, and 
he was discharged without having made any disclosures. Who- 
ever may have been the instigators of the theft, it had no effect 
in retarding the dissolution of Parliament. A royal warrant was 
instantly issued for the preparation of a new great seal; but it 
was not even thought necessary to wait for its completion. The 
prorogation took place on the very day that had been originally 
appointed, and Parliament was dissolved the day afterwards. 

In the new House of Commons, shortly after formed by the 
result of the general election, the premier contrived to secure 
such majorities as placed his power on a secure basis, and left 
Lord Thurlow little to fear on the score of the permanency of 
his office. It was not till the sudden discovery of the king's 
insanity, in 1788, that the stability of the ministry appeared to 
be even threatened; but to judge from appearances, its footing 
was then rapidly sinking from under it. During the adjourn- 
ment that took place immediately after the meeting of Parlia- 
ment, the Prince and his party were upon the alert, making 
active preparations for the assertion of his claim to the regency, 
and there seemed every reason to believe that the very utmost 
Mr. Pitt would be able to effect in opposition to them would be 
the fettering that high office with restrictions ; a measure which 
was not very likely to increase his chance of remaining in power 
under the new order of things. It was chiefly with a view of 
counteracting such a design, that the Prince's party were anxious 
to gain over Lord Thurlow, of whose political honesty they 
appear to have formed a very accurate estimate. Captain Rayne, 
the comptroller of the Prince's household, was one of those who 
took a very active part in the negotiations and intriguings that 
were set on foot to procure recruits for the strengthening of their 



514 LORD THURLOAV. 

body. In one of liis letters to Sheridan, who was busily occu- 
pied in the same business, he says : " I think the Chancellor 
might take a good opportunity to break with his colleagues, if 
they propose restriction. The law authority would have great 
weight with us, as well as preventing even a design of moving 
the city." And in another ; " I enclose you the copy of a letter 
the Prince has just written to the Chancellor, and sent by ex- 
press, which will give you the outline of the conversation with 
the prince, as well as the situation of the king's health. I think 
it an advisable measure, as it is a sword that cuts both ways, 
without being unfit to be shown to whom he pleases, but which 
he will, 1 think, understand best himself." The captain was 
not mistaken. Lord Thurlow understood very well what was 
meant, and took his measures accordingly. The pretext of pay- 
ing frequent visits to the king in his confinement, afforded him 
ample opportunity for conversing with the Prince and his con- 
fidents, without, as he thought, affording an.y handle for suspi- 
cions of treachery and desertion on the part of his avowed 
colleagues. It was of course his object to keep them, if pos- 
sible, in entire ignorance of his daily communications with the 
opposite party ; and to a certain extent he no doubt succeeded ; 
but though every interview might not be detected, it was known, 
or at least guessed, among them that he was putting matters in a 
train for a seasonable defection. Had there been no other means 
of coming at the secret of these mysterious visits, his own inad- 
vertance would have betrayed him ; for he made his appearance 
one day without his hat, in the apartment of the palace where 
the council was sitting ; and on being reminded of it, incautiously 
said that he suppose he must have left it in the other room. 
The looks of those present immediately made him conscious of 
the false step he had made, but it was too late to retrace it.* 

The wary Chancellor, however, took good care not to commit 
himself in any positive engagements with the enemy, while the 
fortunes of the contest remained undecided, and while it was 

* Mr. Moore, in his life of Sheridan, saj's that Thurlow brought the 
Prince's hat under his arm, instead of his own, and thus gave a clae to 
the discovery of his recent interview with that personage; but our 
version of the anecdote is given on the authority of a distinguished 
statesman, who had it from the mouth of Pitt himself. 



LORD THURLOW. 515 

slill doubtful whether fidelity to his own party might not be 
the most profitable line of conduct he could follow. It soon 
became clear to him that this was likely to be the case. The 
prospect of forming one of the main-springs of the phantom (as 
the proposed substitute for a monarch was aptly styled), and 
still more the amendment of the king's health, which promised 
to place matters again on their former footing, convinced him 
that the broad straightforward path would lead him more surely 
to the object he had in view, than the crooked windings of pri- 
vate intrigue ; and the result was that he broke off" entirely with 
the Whigs. No sooner was this done, than he gave a free scope 
to the warmest of protestations, both in the House of Lords and 
out of it, of attachment to the king, of sorrow for his illness, 
and of afi'ectionate anxiety for the care of his royal person ; all 
which had the effect of elevating him high in the estimation of 
the short-sighted multitude, who looked upon such professions 
as the pure and disinterested ebullitions of a grateful heart, over- 
teeming with the finest sympathies of humanity. The admira- 
tion of the people was especially excited in his behalf, when the 
newspapers informed them that the rugged countenance of the 
Chancellor had been moistened with tears, while he wound up 
one of these declamations in the House of Lords by exclaim- 
ing, " My debt of gratitude to his majesty is ample, for the many 
favours he has graciously conferred upon me ; and when I for- 
get it, may my God forget me !" The Whigs in the other 
house, who had been behind the curtain, were not, it may easily 
be imagined, much disposed to share in the popular enthusiasm 
respecting the propounder of these high-flown sentiments ; and 
their taunts upon the subject were profusely dealt forth. "The 
lords," Burke said a few days afterwards, " had perhaps not yet 
recovered from that extraordinary burst of the pathetic which 
had been exhibited the other evening ; they had not yet dried 
their eyes, or been restored to their former placidity, and were 
unqualified to attend to new business. The tears shed in that 
house, on the occasion to which he alluded, were not the tears 
of patriots for dying laws, but of lords for their expiring places. 
The iron tears which flowed down Pluto's cheek rather resem- 
bled the dismal bubbling of the Styx, than the gentle-murmuring 
streams of Aganippe." There were many other sarcasms of 



516 LORD THURLOW. 

this kind delivered in public, but certainly none that out-did, in 
point and terseness, the pithy observation made by Wilkes, in a 
private company : " God forget you ! He will see you d— d 
first." 

By the recovery of the King, not only the continuance of the 
ministers in office vv^as no longer doubtful for the time, but it 
seemed as if they had gathered fresh strength and fresh security 
from the peril that had recently impended over them ; and the 
disconsolate Whigs saw themselves shut out from all prospect of 
probable change in the royal councils. Lord Thurlow, in par- 
ticular, to those who were cognizant of the part he had taken in 
public (and of nothing more) during the regency question, ap- 
peared to have acquired a new title to the esteem and the favour 
of the King; so that, even in the event of any of those vicissi- 
tudes to which cabinets are always liable, it seemed likely that 
George the Third would be disposed to make still greater sacri- 
fices than he had offered at the time of the coalition, for the sake 
of retaining the Chancellor. But these appearances were de- 
ceitful. Pitt was well acquainted with the secret history of that 
vehement explosion of loyalty which had astonished the House 
of Lords, and it is very probable that in the course of time it 
was contrived his majesty should be as little in the dark respect- 
ing the matter as his prime minister. However this may be, 
there could be no doubt that Thurlow very much overrated his 
personal influence with the King, when he imagined that it could 
stand a competition with the influence of Pitt ; and of this he was 
afterwards convinced to his cost. The premier was not a man 
to be satisfied with a lukewarm adherence to himself and his 
party ; nor was he disposed to tolerate in his colleagues assump- 
tion or arrogance founded upon any pretensions, but least of all 
on the score of the King's personal regard, of which, in the case 
of Thurlow, he might already have entertained some little feel- 
ing of jealousy. Thurlow, on the other hand, ill brooked the 
supremacy of Pitt. He fancied he had cause of complaint against 
him for countenancing the prosecution against Warren Hastings, 
which he himself from the outset had warmly opposed; and 
during the whole course of the trial, he did all that lay in him to 
render it nugatory, by continually affording the ex-governor the 
assistance of his professional knowledge. This was only one 



LORD THURLOW. 517 

of many causes that conduced to the bringing about of an open 
rupture between the premier and the Chancellor. The main 
breach was no doubt begun at the period of the King's illness. 
The beginning once made, every petty misunderstanding con- 
tributed in some degree to widen it; and before the opening of 
the session of 1792, it was very evident that the same cabinet 
could not much longer contain both Pitt and Thurlow. Many 
who were not in the intimacy of either, nor possessed particular 
facilities for close observation of their conduct, could foretel the 
approach of the coming storm. Lord North, among the rest, 
not only foresaw it, but predicted the result. " Your friend, Lord 
Thurlow," he said, in conversation with a gentleman kno^vn to 
the Chancellor, " thinks that his personal influence with the 
King authorizes him to treat Mr. Pitt with humetir. Take my 
word for it, whenever Mr. Pitt says to the King, ' Sir, the great 
seal must be in other hands,' the King will take the great seal 
from Lord Thurlow, and never think any more about him." 
The necessity of making such a representation to the King was 
soon forced upon the premier ; for the Chancellor thought fit to 
measure his strength with him, by violently opposing the minis- 
terial measures in the House, conducting himself exactly after 
the same manner that he had formerly done when a member of 
the Rockingham cabinet. The progress of two bills through the 
Upper House (one for continuing the sinking fund and pro- 
viding one for the future with every loan, the other for encou- 
raging the growth of timber in the New Forest) aflforded him the 
occasion of publicly unfurling the standard of defiance against 
the ministers with whom he was associated. In the speeches 
he delivered on the last of these subjects, he openly taxed them 
with endeavouring to mislead the king, declared the proposed 
measure to be a dangerous attack upon the prerogative, in short, 
affected to stand forward as the avowed champion of his sove- 
reign's rights, and for that reason the vehement opponent of the 
ministry. With what view this display was made is pretty 
obvious ; but the issue proved that it was possible for Lord Thur- 
low to enact the part of king's friend, without timing his per- 
formance so as to maintain the more important character he had 
been accustomed to couple with it, namely, that of his own 
friend. In fact, Lord North's prediction was strictly verified. 



518 LORD THURLOW. 

Pitt at once intimated to the king that it was impossible he 
should remain in office together with the Chancellor, ard ex- 
pressed his intention of resigning if the great seal were not im- 
mediately taken from him. The king hereupon consented — 
apparently without much difficulty — to remove Lord Thurlow 
from his post; and on the 15th of June (1792), the same day in 
which Parliament was prorogued, he was required to deliver up 
the great seal. "I have no doubt," writes the same person to 
whom Lord North had prophesied the event, "that this conduct 
of the king was wholly unexpected by Lord Thurlow : it morti- 
fied him most severely. I recollect his saying to me, ' No man 
has a right to treat another in the way in which the king has 
treated me : we cannot meet again in the same room.' " 

On this, his final dismission from office. Lord Thurlow, as a 
member of the House of Peers, found himself in a most forlorn 
condition. He had no ties to connect him with any party, and 
indeed there was none that would not, after such specimens of 
political inconsistency as he had afforded, have distrusted his 
alliance. Some attempt, it appears, was made a few years 
afterwards to secure his co-operation in the formation of a new 
cabinet; but the project of the intended administration was 
never realized, and the failure of the scheme was not much 
regretted, except perhaps by those immediately concerned in it. 
With the exception of this one unsuccessful endeavour to take 
service under a new banner, he remained an isolated combatant 
in the political strife, belonging to neither host, and having con- 
sequently no stake in the event. There was, indeed, properly 
speaking, no course left open to him but that of what is called 
an independent member. This course he accordingly followed, 
and it is needless to add, by adopting it, lost very much, if not 
the whole, of that weight and influence he might have com- 
manded, by propping up his own personal qualifications with 
the support of either of the leading bodies in Parliament. It 
then became evident how much of his authority had previously 
been owing to his station and his party. As the official organ 
of the ministry in the Upper House, he had been always able to 
command attention, if for no other reason than because it was 
supposed every measure he advocated had been previously con- 
sidered by him, in conjunction with his colleagues. x\nd here 



LORD THURLOW. 519 

his station had acquired him a species of credit he was very far 
from deserving ; for as regards this branch of duty, he had always 
been known, by those who were behind the scenes, as the most 
inefficient of all the members of the cabinet. Nay, he was often 
worse than inefficient ; he delighted to throw impediments in the 
way ; and it used to be said of him, that he proposed nothing, 
opposed everything, and was ready to vote for anything. To 
make a show at the same time of his indolence or incapacity, and 
of his want of breeding, it was by no means unusual with hira, 
to throw himself back in his chair, after a cabinet dinner, and 
fall fast asleep while the rest of the company were engaged in 
discussions upon the business for which they had been assem- 
bled. But this was known at the time to comparatively few 
persons, and consequently had little or no effect in lessening the 
weight of the opinions he delivered in the House of Lords. 
When he came to stand alone, he had of course none but his 
own resources to depend upon. 

For some Chancellors Westminster Hall is the most success- 
ful scene of exertion. This was not the case with Lord Thur- 
low. He was in the strictest sense a political Chancellor, who 
had been elevated to the bench, not because he had outshone 
all competitors in ability as a lawyer, but because he had been 
a serviceable ally to the ministers in the House of Commons, 
and was likely to prove so in the House of Lords. The expe- 
rience he had acquired in the course of his practice as a king's 
counsel, and as Attorney and Solicitor-General, was probably 
such as to qualify him in some degree for the duty of an equity 
judge : but it is very certain, that had tiiis duty been (as surely 
it ought, and we confidently hope one day or other it will be) 
the only, or even the principal one of the Chancellor, he would 
not have been the person selected to fill the office. However, 
the next best thing to have in a functionary of any sort fully com- 
petent to the discharge of his duties, is to have one conscious of 
his incompetence, and at the same time anxious to remedy the 
deficiency as best he may. The philosopher of old was justly 
considered to have attained no small proficiency in knowledge 
and wisdom, when he proclaimed as the result of his studies, 
" hoc scio, me nil scire ;" and if every guardian of the great seal 
(to go no further) could be furnished with the same faculty of 



520 LORD THTJRLOW. 

measuring the extent of his legal acquirements, the business of 
the court might possibly be belter done than it sometimes has 
been. 'I'hurlow is entitled to the credit of having foreseen from 
the first that, whether from his inexperience, from his want of 
the requisite legal learning, from his indolence, or from the mul- 
tiplicity of his other avocations, it would be out of the question 
for him to take the whole weight of the judicial duties upon his 
own shoulders ; and he very prudently made up his mind to call 
some assistance to his relief. For this purpose he addressed 
himself to Mr. Hargrave ; and that gentleman undertook to per- 
form for him exactly the same sort of labour which is done for 
many a barrister in very large practice by some less fortunate 
wight of his own calling, who in familiar parlance goes by the 
rather homely name of his " devil." This labour, as possibly 
our readers are aware, consists in searching the authorities, and 
preparing the materials for the arguments, if not occasionally in 
framing the arguments themselves, which are afterwards deli- 
vered in court by the practitioner. By thus getting the chief 
drudgery of his duty taken off his hands, an advocate is never 
considered as forfeiting any of the credit he might acquire, if he 
chose, or rather if his occupations would allow him, to go 
through it without any assistance ; nor do we see why a Chan- 
cellor (whose time is even more fully and more variously en- 
gaged) should be censured for resorting to a similar mode of 
lightening his toil. But, putting all things together, we cannot 
help suspecting that a very great share of the profound legal 
learning attributed by some to Lord Thurlow, was in fact the 
legal learning of Mr. Hargrave, and that it was by the assistance 
of this gentleman's vast store of erudition that his lordship con- 
trived to keep up the character of a consummate lawyer. Mr. 
Butler, who speaks of this Chancellor from his own knowledge 
and observation, tells us that his decrees were "strongly marked 
by depth of legal knowledge and force of expression, and by the 
overwhelming power with which he propounded the result; but 
they were too often enveloped in obscurity, and sometimes rea- 
son was rather silenced than convinced." Now this is exactly 
the impression that would be given by the argument of one who 
enounces a conclusion at which he has not arrived by travelling 
himself through every stage of the reasoning that leads to it; by 



LORD THURLOW. 521 

one who does not so much express his own thoughts as repeat 
a lesson. 

' Neither among the suitors, the solicitors, nor the bar of the 
Court of Chancery, were Lord Thurlow's manners likely to 
render him very popular. He seems to have taken a pride in 
carrying rudeness and churlishness to an extreme, insomuch 
that he was commonly designated in the profession by the nick- 
name of the -tiger. Some, indeed, called him the lion, and Mr. 
Hargrave his provider ; but in both cases, a ferocious animal was 
chosen as the fittest emblem to typify the harshness of his 
temper and deportment. It was remarked, that after his first 
secession from office, when he returned to take his seat in Lin- 
coln's Inn Hall, there was a visible change for the better in his 
demeanour. Perhaps the want of an opportunity for domineer- 
ing during his retirement may have caused him unconsciously to 
lay aside for the time his usual haughtiness of manner. In private 
life, and even in his official intercourse with members of the 
cabinet and others, he seldom gave himself the trouble to check 
the accustomed oaths, wherewith, after the manner of his prede- 
cessor, Lord Northington, he was in the habit of occasionally 
garnishing his discourse. It is told of him, that when a sharp 
dispute arose between him and Mr. Pitt, touching the appoint- 
ment of a Master of the Rolls, just before Sir Pepper Arden 
was named to fill that office, he at length finished the contro- 
versy, by saying to the minister, "I care not whom the devil 

you appoint, so that he does not throw his own d d wallet 

on my shoulders, instead of lightening my burthen." And 
when the same office afterwards became vacant, having made 
up his mind to confer it on his old associate Kenyon, he rebutted 
the pretensions of an aspirant who had written to know if his 
claims were not to be preferred to all others, by sending him the 
laconic epistle, consisting of neither more nor less than these 

words : " No, by G ! Kenyon shall have it." With this 

habit he had given himself, of calUng indifl^erently upon God and 
the devil to witness his asseverations, it is to be supposed he had 
some difficulty in restraining the indulgence of the propensity 
while sitting in the Court of Chancery, where, indeed, the 
potentate of the nether regions is by many held to be, if not in 
his proper person, at least in intendment and contemplation of 

34 



522 LORD TIIURLOW. 

law, or rather equity, as constantly present as the king himself in 
the Court of King's Bench. He did, however, contrive to re- 
press the inclination ; though those that watched him in his not 
unfrpquent moods of irritation, used to assert that the rising of 
the oath to his lips, and the hard struggle to gulp it down be- 
fore it could escape their portals, were often distinctly visible. 
When he was once leaving the court, at the close of the legal 
season, without making any farewell compliment to the bar, one 
of the juniors remarked to his neighbour, in tones sufficiently 
audible to reach the bench, " I think he might at least have 
said ' d — you.' " Whether the Chancellor felt the justice of 
the rebuke for his incivility, or whether he was pleased with the 
form of the salutation suggested by the young barrister, or 
whether, in fine, for it is but fair to presume such a thing pro- 
bable, his want of politeness on the occasion had been inad- 
vertent, he certainly did turn round and repair the omission, by 
taking a formal leave. 

To these few traits of character and manner, we may add a 
slight sketch of his personal appearance in court, taken (it does 
not appear at what time) by the veteran farce writer O'Keefe. 
"I saw Lord Thurlow in court: he was thin, and seemed not 
well in health ; he leaned forward with his elbows on his knees, 
which were spread wide, and his hands clutched in each other. 
He had on a large three-cocked hat, his voice was good, and he 
spoke in the usual judge style, easy and familiar." 

The long arrear of business that remained undisposed of 
during his chancellorship, was imputed by the public entirely to 
his indolence and want of zeal in the discharge of his judicial 
functions. We consider it, if not a more striking proof, at least 
quite as discreditable an effect, of these failings, that while he 
remained in office, he did not achieve, nor indeed attempt, either 
as judge or legislator, a single measure calculated to strike at the 
root of those delays and abuses which have so long formed a 
favourite theme of complaint against the Court of Chancery. 
With respect to the mere irregularity of his attendance, or the 
shortness of the time he occasionally devoted to his legal occu- 
pations, there are many excuses to be made. Among others, it 
should be recollected that in his time there was no deputy 
speaker of the House of Lords ; and he considered it a para- 



LORD THURLOW. 52S 

mount duty to be in his place there, whatever other business 
might he delayed for the want of his presence elsewhere. 

He was also subject to occasional fits of illness, particularly 
to violent attacks of the gout, which from time to time wholly 
incapacitated him from labourer exertion of any kind, insomuch 
that his friends were often induced to fear he would not live to 
enjoy the honours he had acquired. In one of Cowper's letters 
to Mr. Hill, dated May 6th, 1780, the poet says: "These vio- 
lent attacks of a distemper so often fatal, are very alarming to 
those who esteem and respect the Chancellor as he deserves. 
A life of confinement and anxious attention to important objects, 
where the habit is bilious to such a terrible degree, threatens to 
be but a short one ; and I wish he may not be made a text for 
men of reflection to moralize upon, affording a conspicuous in- 
stance of the transient and fading nature of all human accom- 
plishments and attainments." In a letter of another date (June 
9th, 1786) to the same person, he writes, "The paper tells me 
that the Chancellor has relapsed, and I am truly sorry to hear it. 
The first attack was dangerous, but the second must be more 
formidable still." And in allusion to their juvenile intimacy he 
goes on : " It is not probable that I should ever hear from him 
again if he survive ; yet of the much that I should have felt for 
him, had our connexion never been interrupted, I still feel 
much. Everybody will feel the loss of a man whose abilities 
have rendered him of such general importance." There are 
other allusions of a similar kind in Cowper's Correspondence, 
showing that he took a pleasure in looking back to the period 
when the Lord Chancellor, at that time a not very promising 
student of the Inner Temple, was his constant companion. 
Thus, in a letter to Mr. Hill, written a month after Lord Thur- 
low's first retirement from office, (May, 1783) he says : — "I 
have an etching of the late Chancellor hanging over the parlour 
chimney. I often contemplate it, and call to mind the day when 
I was intimate with the original. It is very like him, but he is 
disfigured by his hat, which, though fashionable, is awkard ; by 
his great wig, the tie of which is hardly discernible in profile ; 
and by his band and gown, which give him an appearance 
clumsily sacerdotal. Our friendship is dead and buried." This 
last sentence appears to have been prompted by the neglect with 



524 LORD TIIURLOW. 

which a volume of his poems liad been treated by the Chancellor, 
to whom they had been sent by Cowper the year preceding, 
(February 1782), with a suitable letter of compliment. " Among 
the pieces I have the honour to send," said this letter, " there is 
one for which I must entreat your pardon. I mean that of 
which your lordship is the subject.* My best excuse is, that it 
flowed almost spontaneously from the afi'ectionate remembrance 
of a connexion that did me so much honour." To this letter no 
reply was sent, or at least nearly two months after the delivery 
of it, Cowper expressed to another correspondent (Mr. Unwin) 
some pique at not having then received any, which he had till 
then reconciled himself to by recollecting how much the Chan- 
cellor's time was occupied. It seems, however, that Lord Thur- 
low did, long afterwards, communicate with him by message, if 
not by letter. Hayley was chosen to be the bearer of his lord- 
ship's acknowledgments; and from a letter of Hayley's, dated 
so late as December, 1797, we are led to conclude that he still 
took an interest in his former friend. To all appearance he set 

* " Round Thurlow's head iii early youth, 
And in his sportive days, 
Fair science pour'd the light of truth, 
And Genius shed his rays. 

'See!' with united wonder, cried 
Th' experienced and the sage, 

* Ambition in a boy supplied 

With all the skill of age ! 

* Discernment, eloquence, and grace 

Proclaim him born to sway 
The balance in the highest place, 
And bear the palm away.' 

The praise bestow'd was just and wise ; 

He sprang impetuous forth, 
Secure of conquest, where the prize 

Attends superior worth. 

So the best courser on the plain. 

Ere yet he starts is known. 
And does but at the goal obtain 

What all had deem'd his own." 



LORD THrRLOW. 525 

more value on Hayley's rhymes than on the poetry of Cowper. 
There is preserved in the memoirs of the versifier, a note from 
the Chancellor (1788) complimenting him upon one of the 
effusions he had just inflicted upon the public. There was at 
that time no acquaintance between them ; but a common friend 
subsequently introduced them, and Hayley thus describes (No- 
vember 11th, 1788) a visit he paid to the Chancellor, by invita- 
tion, at breakfast time. " On my entrance, I told him that I was 
particularly flattered in being admitted at that friendly hour ; for 
that I was such a hermit and such a humorist, that I had a 
horror of dining with a great man. As we came away, he said, 
he hoped I would come some day to a private dinner with him, 
when there was no more form than at his breakfast table; to 
which I replied that if I found his dinner like his breakfast, I 
would come whenever he pleased. In short, we are become 
agreeably acquainted, and politely familiar." If we do not add 
more of these details, touching the intercourse of Mr. Hayley 
with Lord Thurlow, it is not for want of the means which the 
correspondence of the former supplies to a greater extent than 
we think it needful to avail ourselves of. To several other men of 
letters Thurlow had an opportunity of marking his favour, by 
conferring church preferment on them ; for instance, to the Rev. 
Richard Shepherd, a voluminous author on poetry and divinity, 
to Robert Potter, the translator of Sophocles and Euripides, andl 
to Horsley. Mr. Potter had been his school-fellow, and took 
divers apportunities of reminding him of his existence, and his 
calling, by regularly transmitting him a copy of each of his 
own works immediately after its publication. No notice what- 
ever had been taken of these presents for many years, till at 
length the reverend translator was one day agreeably surprised 
by the receipt of a short note from the Chancellor, thanking 
him with one sweep of the pen for them all, and offering at the 
same time, to his acceptance something more substantial than 
thanks, namely, a prebendal stall in the cathedral of Norwich. 
With Horsley Lord Thurlow had never had any acquaintance, 
and knew him only by the repute of his edition of Newton, and 
his controversy with Priestley, when he gave him a prebend at 
Gloucester. They afterwards became intimate, and in conse- 
quence the prebendary became Bishop of St. David's. It was 



526 LORD THURLOW. 

in the dedication of an anonymous treatise on the prosody of the 
Greek and Latin languages ihatlJorsley paid those compliments 
to his patron's classical learning to which (and to the value that 
may resonably be set upon them) we have already made allusion. 
"Although," he says, "I wish at present to be concealed, I 
cannot persuade myself to send this tract abroad, without an 
acknowledgment which perhaps may betray me, of how much 
my mind has been informed, and my own opinions upon this 
subject have been confirmed, by conversations which many 
things in this essay will bring to your recollection." It is but 
fair to add, that this was published after the Lord Chancellor's 
retirement from office. 

There is another case on record of Lord Thurlow's patronage 
of literary merit which does him great honour ; we mean that 
of Dr. Johnson. Though little personally known to each other, 
they always professed, and doubtless felt, a mutual respect and 
esteem, which the similarity of their manners, not to say of their 
characters, may probably have done much to encourage. John- 
son more than once declared there was but one man in England 
for whose conversation he should think it necessary to prepare 
himself, and that was Lord Thurlow ; a high compliment cer- 
tainly, coming as it did from one who dealt not much in compli- 
ments of any kind. Had this been said of Johnson by Thurlow, 
there would have been little to remark, though the one was 
hardly more given to flattering speeches than the other. How- 
ever, the peer had it in his power to proffer something better 
than compliments, and he certainly used the power with much 
delicacy and generosity. He had been applied to by Johnson's 
friends to solicit from the government a sura sufficient to cover 
the expenses of a foreign journey, which they considered neces- 
sary for his health, and he readily undertook the task. The 
application failed of success ; and Lord Thurlow immediately 
volunteered to furnish the means required, to the amount of five 
or six hundred pounds, taking care to instruct Sir Joshua Rey- 
nolds, who was the bearer of this ofl^er, that, to make the obliga- 
tion sit light upon Johnson, the gift (for as such it was intended) 
should have the appearance of a loan, of which payment was to 
be secured by the mortgage of the doctor's pension. The letter 
in which Johnson expresses his gratitude for the offer, though 



LORD THURLOW. 527 

at the same time he declines it, has, we have no doubt, been 
perused and admired by every one of our readers ; but as it may 
not be present to the recollection of every one, we subjoin it at 
the foot of the page.* 

What makes it singular that Johnson should always have pro- 
fessed such esteem for Lord Thurlow, is, that the latter was very 
well known to entertain opinions upon the subject of religion, 
such as in many other cases were wont to kindle in the breast 
of the great lexicographer the flames of that direst of all sorts 
of hatred, the odium theologicum. This inconsistency he 
committed in common with George the Third, who also made 
the Chancellor an exception to his general dislike against those 
who openly transgressed the bounds of morality and decorum, 
by indulging themselves with the conveniences of matrimony 
without calling upon the church to sanctify their connubial pro- 
ceedings. Of both these crimes Lord Thurlow was guilty ; and 
made no secret of his guilt, at least with respect to the latter, 
since he lived for years with a mistress, and with an illegitimate 
family till the time of his death. As to his notions on the sub- 
ject of religion, it is probable he did not proclaim them quite so 
openly. Whether he did so or not, there were some, at all 

* ''My Lord — After a long and not inattentive observation of man- 
kind, the generosity of your lordship's offer raises in me not less won. 
der than gratitude. Bounty so liberally bestowed I should gladly re- 
ceive, if my condition made it necessary; for to such a mind who 
would not be proud to owe his obligations 1 But it has pleased God to 
restore me to so great a measure of health, that, if I should now appro- 
priate so much of a fortune destined to do good, I should not escape 
from the charge of advancing a false claim. My journey to the Conti- 
nent, though I once thought it necessary, was never much encouraged 
by my physicians ; and I was very desirous that your lordship should 
be told of it by Sir Joshua Reynolds, as an event very uncertain : for 
if I grew xpuch better I should not be wiUing ; if much worse, not able 
to migrate. Your lordship was first solicited without my knowledge ; 
but when I was told that you were pleased to honour me with your 
patronage, I did not expect to hear a refusal; yet as I have had no 
long time to brood hope, and have not rioted on imaginary opulence* 
this cold reception has been scarce a disappointment; and from your 
lordship's kindness I have received a benefit, which only men like 
you are able to bestow. I shall now live, mihi carior, with a higher 
opinion of my own merit." 



528 LORD THURLOW. 

events one person, who took great pains to make it be believed 
that his opinions were within the pale of orthodoxy. That per- 
son was his brother, the Bishop of Durham ; and our readers, we 
think, are likely to be amused, if not edified, by an account of 
the mode in which he once set about proving his position. A 
very learned and excellent dignitary of the church and of the 
university of Oxford (who still lives to tell the story) was lament- 
ing to the bishop that his brother, the Chancellor, who had so 
much church patronage in his gift, and might indeed, in some 
respects, be said to possess the attributes of an ecclesiastic, 
should be insensible to the great truths of Christianity, and in 
fact be notoriously neither more nor less than a professed deist. 
"Ah ! my dear doctor," responded the prelate, " I regret, indeed, 
to find that you too labour under this very common misappre- 
hension. I know very well the public believes my brother to 
be in the deplorable condition you describe; but I can confi- 
dently assure you, and indeed give you full proof, that he is 
not so. I myself can safely vouch that in the extremities of 
pain and suffering he always looks for consolation where alone 
it is to be found; for I have often sat with him in his chamber 
when he was enduring the acutest torments of the gout, and he 
scarcely ever underwent a particularly excruciating twinge that 
he did not loudly cry out 'O! Christ Jesus !' " 

Such a defender of character was worth rewarding with some 
of the good things in the Chancellor's disposal ; and the Reve- 
rend Thomas Thurlow, who had begun his ecclesiastical career 
as a simple fellovv of Magdalen College, Oxford, passed succes- 
sively through the easy stages of rector of the great living of 
Stanhope, Master of the Temple, Dean of Rochester, Dean of 
St. Paul's, and Bishop of Lincoln, (the two last at one time,) 
until at length he "settled down in that much coveted resting- 
place, the Bishopric of Durham. His son also was made to 
feel the comforts and advantages of having an uncle upon the 
woolsack, being appointed clerk of the hanaper, and putting into 
his pocket (if the statements lately made in the House of Lords 
be correct) no less than nine thousand a year of the public money. 
Another nephew of the Chancellor, the son^ of his younger 
brother, who was a trader and alderman of Norwich, contented 
himself with, a prebend in the cathedral of that city. 



LORD THURLOW. 529 

Lord Thurlow himself had contrived to amass a very respect- 
able portion of the pecuniary gifts of fortune in the course of 
his official career. He had purchased property at or near his 
native place in Suffolk, and he also became master of an estate 
in another part of the same county, namely, at Thurlow, on the 
borders of Essex and Cambridgeshire, In the second patent of 
his peerage, which he procured shortly after his last resignation 
of ihe seal, for the purpose of having it entailed on the issue 
male of his two brothers, he was designated as Lord Thurlow, 
of Thurlow, in Suffolk, though he had not at the time entirely 
completed the purchase there. We believe he never had a resi- 
dence either at Ashfield or Thurlow. His principal abode, 
especially after^ had entirely quitted office, was a house he 
erected himself, at the cost of a considerable outlay of temper 
and money expended in debates with the builder, near Dulwich, 
at the distance of a very few miles from town. This place he 
called Knights' Hill. Though he constantly kept up an estab- 
lishment in London, first in St. James's Square, and afterwards 
in George Street, Westminster, he made use of his town resi- 
dence, merely for the convenience of its proximity to the House 
of Lords. He never resided, nor, indeed, even slept in town, 
but used to drive down at night to Dulwich after his attendance 
in Parliament. His family consisted of three illegitimate daugh- 
ters. He had also had a son by the daughter of a dean of Can- 
terbury, to whom some supposed he had been married in early 
life, but the young man died while completing his studies at 
Cambridge. The daughters always resided with him till they 
married, and to two of them he left by his will the sum of sev- 
eitty thousand pounds each. The third, Mrs. Brown, offended 
him by contracting a match against his consent, and though he 
forgave her so far as to take her back into his house on her 
separation from her husband, he did not provide for her so libe- 
rally, bequeathing her only an allowance of fifty pounds a month, 
to be paid to her so long as she continued to live apart from 
him, and no longer. The object of this arrangement evidently 
was to prevent the obnoxious Mr. Brown from being a gainer by 
his marriage. W^ith these ladies he used to make frequent visits 
to Brighton, Bognor, and other places on the coast, as well as. to 
Buxton, and Scarborough, and Bath, where the state of his 



530 LORD THURLOW. 

health rendered it advisable for him to pass a considerable por- 
tion of his lime. It is especially recorded of him, that being 
once at the last-mentioned place, and having walked into the 
rooms booted and spurred, the master of the ceremonies came 
up to him, and gave him to understand that, by the rules he had 
the honour to administer, spurs were a forbidden appendage to 
the person. His lordship did not attempt to dispute such au- 
thority, but immediately caused the offensive weapons to be 
taken off, good-humouredly remarking, that the rules of Bath 
were not to be disputed, and desiring the autocrat of the pump- 
room to make an apology in his name to the rest of the company, 
for the involuntary breach of etiquette. Such prompt obedience 
to the lex loci was warmly applauded by the-fty-standers, the 
rather that it contrasted favourably with a recent instance of 
mutinous conduct on the part of a bishop's lady, to whom it was 
possibly intended as a wholesome rebuke. This is one of very 
few specimens we could quote of his amenity of manner; of his 
gruffness and rudeness there is no lack. It is but justice, how- 
ever, to add, that he seldom displayed these qualities towards 
his inferiors in rank ; but reserved them almost entirely for the 
society of such as it is to presumed were least accustomed to 
meet with them in others. Whether this was done from an 
affectation of eccentricity, or from a morbid desire to make it 
apparent, even in the most trivial matters, that he stood in no 
awe of rank and station however elevated, we do not pretend to 
determine. Certain it is that, in the presence of his equals, he 
often chose to emancipate himself altogether from the restraints 
of politeness. For example, he was visiting once at the man- 
sion of a nobleman in Yorkshire, and as he was being conducted 
by the host, together with a large party through the grounds, he 
was asked, on approaching the conservatories, whether he would 
not like to go in and taste the grapes. " Grapes, indeed," 
growled he, " did not I just now tell you I had got the gripes ?" 
Of his ordinary manner and appearance during the latter part 
of his life, we are fortunately able to present our readers with a 
very graphic description. What we were about to quote on this 
head is a short extract from the manuscript diary of a gentleman* 

* The late Edward Jerningham, Esq., the brother of the present Lord 



LORD THURLOW. 531 

who, at that time, passed two evenings in his society at Brighton, 
and appears to have directed his observation particularly towards 
the ex-Chancellor. The date is 1806, the year in which Lord 
Thurlow died : 

''Brighton, 1806. 

" We afterwards dined at , to meet Lord Thurlow and 

his daughter, Mrs. Brown. A large party were assembled there. 
I was never more struck with the appearance of any one than 
with that of Lord Thurlow. Upon entering the drawing-room, 
where he was seated on a sofa, we were all involuntarily moved 
to silence, and there was a stillness which the fall of a pin would 
have disturbed. He did not move when we came into the room, 
but slightly inclined his head, which had before hung down on 
his breast. He was dressed in an old-fashioned grey suit, but- 
toned very loosely about him, and hanging down very low ; he 
had on a brown wig, with three rows of curls hanging partly 
over his shoulders. He was very grave and spoke little. His 
voice is rough, and his manner of speaking slow. 

"Lord Thurlow is, I believe, only seventy-five; but from his 
appearance, I should have thought him a hundred years old. 
His large, dark, heavy eyes, which he fixes at intervals upon 
you, are overshadowed with perfectly white eyebrows, and his 
complexion is pallid and cadaverous. Upon literary subjects 
he ordinarily converses with much seeming pleasure, but having 
been this morning to the races, he was fatigued, and said very 
little. At dinner he drank a good deal, but nothing afterwards. 
In the course of conversation, Mr. M. [Mr. Mellish] being 
remarked as a great favourite of the populace. Lord Thurlow 
said, ' They like him as a brother blackguard ;' and then added, 
* I am of their opinion. I dislike your pious heroes ; I prefer 
Achilles to Hector, Turnus to ^Eneas.' Lord Thurlow has a 
surprising memory, and will not allow of the want of it in any 
one else ; but says that it is want of attention, and not of 
memory, that occasions forgetfulness. Being asked how long 
it was since he had been in Norfolk, he replied, 'About fifty or 
sixty years ago.' 

Stafford. We owe the extract to the kindness of his son, Mr. C. E. 
Jerningham. 



532 LORD THURLOW. 



• 



" He wenthome very early, calling loudly for his hat, which 
I remarked as being of black straw, with a very low crown, and 
the largest rim I ever saw. It is easy to see that in his observ- 
ing mind the most trifling incidents remain graven. Thus upon 
Lady J. being asked a second time, at the end of dinner, whe- 
ther she would have any wine. Lord Thurlow immediately 
exclaimed, in a gruff voice, ' Lady J. drinks no wine.' 

" We went to-day to dine at Lord Thurlow's, and upon being 
summoned from the drawing-room to dinner, we found him 
already seated at the head of his table, in the same costume as 
the day before, and looking equally grave and ill. Lord Bute 
being mentioned, and some one observing that his life was going 
to be written, Lord Thurlow sharply observed, * The life of a 
fly would be as interesting.' " 

Lord Thurlow died (I2th Sept. 1806) not very long after the 
dinner-parties here described, being suddenly seized, while at 
Brighton, with an attack of illness which carried him off in two 
days. His remains were privately conveyed to his house in 
Great George-Street, whence they were removed to the Temple 
church for interment. The funeral procession was a very splen- 
did one, and attended by a great concourse of persons, including 
many high in rank and office; among others, the Lord Chan- 
cellor, the Chief Baron of the Exchequer, the Duke of New- 
castle, Lord Ellenborough, Lord Eldon, and Sir William Scott, 
who officiated as pall-bearers. Lord Eldon was appointed one 
of the executors, but, we believe, refused to act as such. His 
talent as a lawyer had been, from his first coming into practice, 
fully appreciated by Lord Thurlow, who, it is said, at one time 
offered him a mastership in Chancery. However, his then rapidly 
increasing business induced him to decline the appointment. 

There remains but little for us to say of Lord Thurlow as a 
lawyer or a statesman. Whatever capabilities he may have 
possessed for distinguishing himself in either character, he must 
of course be judged, not by what he could have done, but by 
what he actually did ; and that, as we have already shown, was 
very little. In the cabinet he was always little better than a 
cypher; in the Court of Chancery, if he shone with more lustre 
than elsewhere, he certainly was far from being a star of the 
first magnitude; and, even such as he appeared, he glittered in 



LORD THURLOW. 533 

part with a borrowed light. The two Houses of Parhament 
seem to have afforded him the most favourable arena for display- 
ing that native strength and vigour of mind, which to a certain 
extent he undoubtedly possessed ; and yet, upon the whole, his 
career as a politician certainly cannot be said to furnish matter 
of panegyric. No power of argument, no command of lan- 
guage, no degree of abiUty as an orator or as a statesman, can 
cover over a stain, such as the want of political integrity has left 
upon his character. "When he deserted his party to secure his 
place, he must have known very well that the power and the 
emolument he coveted could not be retained but by a sacrifice 
of his fair fame. That sacrifice he voluntarily and deliberately 
made : he paid the price, and concluded what he considered an 
advantageous bargain. It is now too late to dispute about the 
reasonableness of the contract. There is no retracting from this 
kind of engagement. It is like paying for admission to the the- 
atre ; when once you have entered, if you are not pleased with 
the performance you may retire if you please, but no money is 
returned. If, therefore, without fear of arousing from his grave 
the classic ghost of Dr. Parr, we might venture to suggest so 
barbarous an interpretation of the word fortuna as that which 
is conveyed by the most common acceptation of our English 
word fortune^ that is, wealth, we should say that in this sensie, 
as well as in the more obvious and correct one, we may readily 
admit the justice of the remark applied to Lord Thurlow by the 
learned prefacer of Bellendenus : " Fuit ei, perinde atque aliis, 
fortuna pro virtutibus." 



LOUD ASHBUETON; 



Among those eminent lawyers who have been called to the 
bench, there are very few whose celebrity as barristers has not, 
in a great degree, merged in their celebrity as judges. Possibly 
the adventitious circumstances of rank and station may often 
have some influence in this respect, so far as regards the opinion 
of their contemporaries ; and of course it must generally be 
pretty much in proportion as the attention of their contempo- 
raries is directed towards them, that posterity will feel interest 
in their history, or, if they feel any, will have the means of 
gratifying it. There is another very obvious reason why the 
merits and character of the judge should be better known than 
those of the advocate ; which is, that as the very change from 
the one station to the other has of itself the effect of giving 
authority to the opinions of him who is thus promoted, so it 
follows, as a matter of course, that those opinions are recorded 
with much greater care, and studied with much more earnestness 
aftef the change has taken place. Thus, for example, the pre- 
sent generation of lawyers knows very little, and probably thinks 
still less, of the speeches delivered at the bar by Mr. Philip 
Yorke, or Mr. William Murray ; but many of them have almost 
daily occasion to renew their acquaintance with the decisions 
pronounced from the bench by Lord Hardwicke and Mansfield. 
The reputation of the advocate is even more perishable still, if 
his labours have not been crowned with the reward of a judicial 
appointment. He dies and leaves no trace behind him, except 
perhaps some few floating traditions of his wit or his learning, 

* Although Lord Ashburton never filled a strictly judicial office, the 
reader, it is hoped, will not be displeased at thi^ memoir being included 
in the volume. 



LORD ASHBURTON. 535 

or his other qualities good and evil, which are speedily chased 
from the memory by the present feats of his successors; and 
after the generation of his immediate contemporaries has passed 
away, his very name ceases to be remembered. Some there 
may be who have escaped this common fale ; but they are far 
too few to disturb the common applicability of the rule. The 
most striking exception to it we know is he of whom we are 
now about to sketch a brief memoir. The long estrangement 
of his party from power deprived him of all opportunity of 
aspiring to the honours of his profession, until it was too late 
for him to bear them in conjunction with the duties attached to 
them ; and the title which he then thought it worth his while to 
receive had none but a nominal connexion with a judicial office. 
His course, therefore, was run entirely at the bar ; and his repu- 
tation (no mean one) depends altogether upon what he achieved 
within that career. 

John Dunning began life without any of the advantages attend- 
ant upon birth and fortune. His family was originally from Gna- 
tham, in the neighbourhood of Tavistock, in Devonshire ;* but 
his father had setded at Ashburton, in the same county where 
he practised as an attorney. He had married the daughter of a 
Mr. Henry Judsham, of Old Port, in the parish of Modbury; 
and the fruits of the matoh were in all three children, the eldest 
of whom, a boy, died in his infancy, and the youngest, a daugh- 
ter, at a more advanced age, but unmarried. The John Dunning 
of whom we have here to speak was his second son. He was 
born on the 18th of October, 1731, in the house where his father 
resided and carried on his business, which house is still stand- 
ing, and is pointed out at this day to the stranger by the towns- 
people of Ashburton, with no litde pride and complacency. They 
have also John Ford, the dramatic author, to boast of as a native 

• The name of Dunning seems to be of some antiquity in the county. 
We have met with a quarto pamphlet by one Richard Dunning, bear- 
ing the date of 1686. It contains suggestions for the better and more 
economical management of the office of overseer of the poor in Devon- 
shire, whereb3%as the title page holds out, £9000 a year may be saved. 
This Richard Dunning styles himself gent, (qiicere one, &c.) and dedi- 
cates his pamphlet " to the right worshipful and my honoured masters, 
the justices of the peace for the county of Devon." 



5r36 LORD ASIIBURTON. 

of their town, or at least of its immediate vicinity, and of its 
having produced, in more modern limes, two men of consider- 
able note in the world of letters ; namely, Dr. Ireland, Dean of 
Westminster, and Mr. Gifford, the late editor of the Quarterly 
Review. Each of these received either the whole or a portion 
of his education at the free grammar school of Ashburton. Dun- 
ning was sent thither when he was about seven years old, at a 
time when it had for its master the Rev. Hugh Smerdon, curate 
of the neighbouring parish of Woodlands; the same person by 
whose instructions Gifford profited some five and twenty years 
later, and to whose situation in the school it was at one period 
of his life (as may be seen in the memoir affixed to his edition of 
Juvenal) the utmost soaring of his ambition to succeed. 

At this school Dunning remained during about five years ; and 
whatever knowledge he acquired afterwards must have been the 
fruit of his own unassisted studies, for all the tuition he ever re- 
ceived was while he continued under the care of Mr. Smerdon. 
The period was short, no doubt, for a regular course of educa- 
tion, and, what was worse, it comprehended a very juvenile por- 
tion of his life. But such advantages as he had he certainly 
made the most of. Young as he was on his first entrance into 
the school, he very soon distinguished himself from the rest of 
the boys by the rapidity of his progress. His memory was so 
remarkably retentive, that he required only a few hours to com- 
mit a whole book of Virgil to memory. His reasoning faculty 
also signalized itself in his fondness for the study of mathematics, 
of which he very early mastered the elements. When he was 
little more than ten years old, he had gone through the first book 
of Euclid ; and the diagrams, which he drew on the whitened 
wainscot of the school-room, were visible there for a long time 
afterwards. Mr. Polwhele, who has commemorated these par- 
ticulars of his youthful studies in his History of Devonshire, 
says Dunning has often been heard to declare later in life, that 
he owed all his success to Euclid and Newton. Whatever in- 
timacy he had cultivated with the last of these was not com- 
menced, we are inclined to think, at Ashburton school. 

When taken from thence, he could not have been more, at the 
utmost, than thirteen years of age ; and he was immediately- 
placed as an articled clerk in the office of his father, who at that 



LORD ASHBURTON. 537 

lime had no other views for his son than to make him first his 
partner and afterwards his successor. The talent and the assi- 
duity of young Dunning caused a change in this plan. It was 
not very long before he qualified himself to take a leading part 
in the business of the ofiice. Several monuments of his industry 
as a clerk are still to be met with in the neighbourhood of Ash- 
burton, such, for instance, as family deeds and settlements, writ- 
ten throughout by his own hand, and bearing his signature as an 
attesting witness. Many pages also, of the proceedings in the 
parish books are of his writing, and are signed J. Dunning, 
junior: these occur not only during the time when he was re- 
siding in his father's house, but afterwards when he was merely 
making occasional visits there. He continued thus to perform 
the duties of a clerk till he was about nineteen, when his talent 
and the knowledge of law he had already acquired were disco- 
vered by one who foresaw their chances of success on a more 
lofty theatre, and suggested to his father the propriety of sending 
him to the bar. It is said that this came about in the following 
manner. A deed or legal instrument of some kind was to be 
drawn up in the office, and the task fell upon young Dunning, 
who completed it and sent it off in his father's absence to the 
person for whom it was intended, and who, being a lawyer, was 
to settle it himself. The old gentleman, on his return home, 
heard what had been done, and, full of anxiety for the credit of 
his office, immediately dispatched a note of apology, excusing 
himself for any errors that might happen to be found in the draft, 
on the ground of his not having had an opportunity of revising 
and correcting it with his own hand, the whole having been 
written by his son, a lad under nineteen. It proved, however, 
that there was no sort of necessity for excuse. No fault of any 
kind could be found with the draft, and indeed it was such as to 
give a very favourable idea of the proficiency of the youth who 
had drawn it. The lawyer to whom it had been sent was no 
other than Sir Thomas Clarke, the Master of the Rolls, who had 
considerable property in the neighbourhood, and for many years 
had employed old Mr. Dunning as his steward. He immediately 
set about inquiring further into the young man's ability, and find- 
ing the expectations which this first sample had created more 
than realized, he strenuously recommended the father to send 

35 



538 LORD ASIIBURTON. 

him at all sacrifices to tlie bar, ofTering, if need might be, to assist 
him with his own purse, during the preparatory period of keep- 
ing terms. In pursuance of this counsel, young Dunning was 
entered of the Middle Temple. 

The date of his admission, according to the entry in the So- 
ciety's books, is May 8th, 1752, at which time he was in the 
twenty-first year of his age. The chambers he occupied, if not 
from his first coming into residence, at least during a portion of 
the time he remained a student, and for a long while after he 
was called to the bar, are known, by a tradition current in the 
Temple, to have been the second floor set at No. 1, Pump Court, 
on the side farthest from the cloisters. Here he laid up the 
greater part of those stores of legal knowledge, which afterwards 
stood him in such good stead, when he came to have daily op- 
portunities of drawing upon the hoard. He is said rarely to have 
quilted his rooms before the evening, except when attending the 
Courts ; the fore part of tlie day being entirely devoted to read- 
ing. We have, no means of knowing what method he pursued 
in his studies, nor can it be stated with certainty, whether he 
pursued them entirely alone, or with the assistance of any prac- 
titioner either at or under the bar: there is reason, however, to 
beheve that he never became pupil to a pleader, though he 
strongly recommends such a course to others. In a letter writ- 
ten by him much later in life, to a young man about to commence 
his studies for the bar, he gives some directions as to the choice 
of books, and the different means of acquiring legal knowledge, 
among \vhich it is to be supposed are to be found some at least 
of those which he himself adopted. We shall extract a passage 
from this : — 

" I would always recommend a diligent attendance on the 
courts of justice ; as by that means the practice of them, a cir- 
cumstance of great moment, will be easily and naturally acquired. 
Besides this, a much stronger inipression will be made on the 
mind by the statement of the case, and the pleadings of the coun- 
sel, than from a cold uninteresting detail of it in a report. But 
above all, a trial at bar, or a special argument, should never be 
neglected. As it is usual on these occasions to take notes, a 
knowledge of short hand will give such facihty to your labours, 
as to enable you to follow the most rapid speaker with certainty 



LORD ASHBURTON. 539 

and precision. Common-place books are convenient and useful ; 
and as they are generally lettered, a reference may be had to 
them in a moment. It is usual to acquire some insight into real 
business under an eminent special pleader, previous to actual 
practice at the bar. This idea I beg leave strongly to second ; 
and indeed I have known but a few great men who have not 
possessed this advantage." 

If Dunning himself contrived to attain the highest pitch of 
eminence as a lawyer, without this and some other helps which 
are now considered little less than indispensable in professional 
education, his initiation in the practice of an attorney's office 
gave him, on the other hand, a great advantage over the majority 
of legal students. Indeed, he had gained a long start on most 
of his competitors in the race. There was another young man 
at the same time a student in the Temple, whose career in this 
respect had been similar, and whose success afterwards kept 
pace with his own ; namely Kenyon, who became the successor 
of Lord Mansfield in the Court of King's Bench. Dunning 
and he were on terms of very close intimacy. Home, better 
known afterwards as Home Tooke, who was then keeping terms 
at the Inner Temple, was one of their habitual associates ;* and 
from his account of their mode of living, it appears that they 
all three found it advisable to circumscribe their expenses within 
the very strictest bounds of economy. Out of term, they used 
generally to dine at a small eating-house near Chancery Lane, 
where their meal was supplied to them at the charge of seven- 
pence halfpenny a head. " Dunning and myself were gene- 
rous," added Tooke, when telling this to his friend Mr. Stephens, 
"for we gave the girl who waited upon us a penny a-piece; but 
Kenyon, who always knew the value of money, sometimes 
rewarded her with a halfpenny, and sometimes with a promise." 

For some time after his call to the bar, which is recorded as 
having taken place on the 2nd of July, 1756,t matters did not 

* It is a singular instance of the vicissitudes of h'fe, that on Home 
Tooke's first trial at the suit of the Attorney-General (Thurlow) he 
should have had Dunning for his defender; and many years afterwards 
(1794), on a similar occasion, Lord Kenyon for his judge. 

f It is manifest that there must be some mistake in the entry either 
of Dunning's admission or of his call, since there is a less interval 



540 LORD ASHBURTON. 

mend with Dunning, so for as regarded his finances. " He tra- 
velled the western circuit," ssiys Mr. Polwhele, in his History 
of Devonshire, '* but had not a single brief; and had Lavater 
been at Exeter in the year 1759, he must have sent counsellor 
Dunning to the hospital of idiots. Not a feature marked him 
for the son of wisdom." His appearance, indeed, was singu- 
larly unprepossessing. His stature was of the smallest, and his 
limbs, though none of them absolutely deformed (unless, indeed, 
considerable bandiness, and an unusual protrusion of the shin 
bones in front, may be said to have merited that title for his 
legs), were ill-shaped and awkwardly put together; nor were the 
defects of his figure at all atoned for by any counterbalancing 
beauties of countenance. The feature that would most probably 
have produced upon Lavater the unfavourable impression above 
hinted at, was a short and peculiarly cocked nose, which, if we 
recollect right, the philosopher of Zurich upholds to be an un- 
failing symptom of small intellect. However, fortunately for 
Dunning, all men are not believers in the infallible science of 
physiognomy. There was one person at least, who, in spite 
of the turned-up nose, gave him credit for a considerable share 
of talent, and found means to furnish him with a very good 
opportunity of displaying it. This was Mr. Hussey, a king's 
counsel. The piece of duty for which this gentleman recom- 
mended him was not, strictly speaking, a professional one ; but 
it had the effect of bringing his name into notice, perhaps, as 
much as would have been done by any exhibition which he 
could be likely to have an opportunity of making in the cha- 
racter of a junior counsel. The occasion was the adjustment of 
the disputes that had been pending two years and more between 
the Dutch and English East Lidia Companies. After the final 
overthrow of the dominion of the French in the East, the 
Dutch, being naturally jealous of our greatly increased power 
in that quarter of the globe, and having, perhaps, some real 

than five years between the two. We lately had occasion in the case 
of Thurlow to notice something similar in the books of the Inner 7'em- 
ple. However, as there can be no higher authority than these records 
to appeal to, the inaccuracy, so far as we are concerned, must remain 
uncorrected. We have reason to think the error here is iu the date of 
the call, and not of the admission. 



LORD ASHBURTON. 541 

grounds of complaint, had sent home to their government a 
memorial, wherein they complained of the English for having 
violated their privileges as neutrals, and interrupted their com- 
merce. After some communication between the two govern- 
ments on the subject of these allegations, at length, in October, 
1761, Mr. Hop, then envoy extraordinary from the States, trans- 
mitted the Dutch company's memorial to Lord Bute, who forth- 
with directed the English company to answer it. While the 
Court of Directors were considering to whom it would be pru- 
dent to commit the task of drawing up the reply, Mr. Hussey 
presented Dunning to Mr. Lawrence Sullivan, who was at the 
lime their chairman, and recommended him as a young man every 
way qualified to perform it. He was accordingly engaged to do 
so. The result was, that early in the following year (23d Feb- 
ruary, 1762), a counter-memorial was delivered to the king. It 
afterwards made its appearance in the shape of a quarto pam- 
phlet of forty-five pages, under the title of "A Defence of the 
United Company of Merchants of England trading to the East 
Indies, and their servants, (particularly those at Bengal,) against 
the complaints of the Dutch East India Company; being a 
memorial from the English East India Company to his Majesty 
on that subject." This has been designated as a most masterly 
performance, a consummate specimen of argumentative elo- 
quence, and the like; but we must own we have found nothing 
in it to warrant such exaggerated praise. Indeed, the perform- 
ance has appeared to us, upon the cursory inspection we have 
given it, to be one that might be produced by any man with a 
clear head and a tolerable degree of practice in literary compo- 
sition ; nor have we the slightest doubt that the Directors of the 
East India Company might readily have found (at least we are 
quite sure they could at present find) twenty young men to do 
their work equally well, without going beyond the gates of the 
Temple to look for them. Thus much we say, not with the 
view of detracting in the slightest degree from the merit of Dun- 
ning, who executed his task well and in workmanlike fashion ; 
but simply to put this matter upon what we conceive to be its 
right footing. The best eulogium that can be given to the pam- 
plet is, that it achieved the object it was intended to accomplish ; 
for it produced a conciliatory answer from the Dutch govern- 



542 LORD ASHBURTON. 

ment, and, what Dunning no doubt considered a much greater 
triumph of authorship, it procured him an acknowledgment from 
the seat of empire in Leadcnhall-street, couched in the agreeable 
form of a draft for five hundred guineas. 

There can be no doubt thai the credit he gained, and the con- 
nexions he formed by means of this performance, had shortly a 
very material influence upon the amount of his practice. Pre- 
viously to the year 1703, when we find him holding a junior 
brief with Thurlow, we have not observed his name to occur 
once in Burrow's Reports. After this, however, we trace symp- 
toms of his increasing business, in some of the cases brought 
into the Court of King's Bench from the Western Circuit. 
Here, indeed, the lucky accident of a leading counsel being sud- 
denly laid up with an attack of the gout, and entrusting him 
with the management of some briefs which he thus was pre- 
vented from attending to himself, had given Dunning an addi- 
tional opportunity of displaying his ability. In the case of 
Combe v. Pitt, (Trinity term, 1763,) which arose out of the 
election for.Ilchester in Somersetshire, it fell to his task to argue 
a demurrer ; and the ability with which he acquitted himself 
upon the occasion drew forth a handsome compliment from Lord 
Mansfield.— "The gentlemen on both sides," he said, (the other 
was Mr, Yates, not long afterwards a judge of the court,) " had 
both argued like lawyers, and had uttered not a word too much 
or a word too little." 

About this time his practice is said to have netted him 
nearly a thousand a year, and he had every prospect of seeing 
it gradually augmented, by that steady increase which almost 
every man of perseverance and ability may fairly count upon at 
the bar, when he has once got what Dunning had now obtained, 
but what so many of the profession are, like Archimedes, vainly 
looking out for all their lives, namely, a spot whereupon to place 
the fulcrum. At the conclusion, however, of this year (1763), 
he had the good fortune to be engaged in a case, upon the event 
of which the attention of the whole kingdom may be said to 
have been most anxiously directed, and in consequence he found 
himself raised, at one single bound, to the eminence he might 
otherwise have toiled many a weary year to attain. The case 
we allude to was the prosecution instituted by Leach the book- 



LORD ASHBURTON. 543 

seller against the. messengers, who had seized his papers and 
imprisoned his person, under the authority of the general war- 
rant issued by the Secretary of State, for the arrest of the per- 
sons concerned in the publication of the North Briton. For 
his brief in this cause he was indebted to the recommendation 
of his friend Wilkes. They had been on terms of intimacy 
from a very early period of Dunning's professional career, a 
time when both were frequent attendants of an evening at 
Nando's, George's, and the Grecian, and other coffee-houses 
about the Temple, which, though principally patronized by the 
lawyers who had their residence in the immediate neighbour- 
hood, still retained sufficient of their former character as the 
resort of literary men, to secure them the occasional presence of 
the same class of loungers who had been wont to haunt them 
in the days of the Tatler and (he Spectator. This was not the 
only occasion of Dunning's being indebted for business to Wilkes, 
before his celebrity at the bar had placed him above the want of 
any such exertion of friendship in his behalf. 

The effect which we have already stated to have been produced 
by Dunning's holding ai brief in the case of Leach, was not the 
immediate consequence of the original trial in December 1763, 
There the part he played was simply that, of a junior counsel at 
Nisi Prius, which, as every body knows, affords little or no 
room for display of any kind. But a bill of exceptions against 
the sufficiency of the evidence then admitted by Chief Justice 
Pratt (Lord Camden) was tendered on behalf of the king's mes- 
sengers, and errors having been assigned thereupon, the duty of 
arguing them in the Court of King's Bench devolved, according 
to professional etiquette, entirely on him. The first hearing did 
not come on till the 18th of June, 1765 ; the Solicitor-General, 
De Grey, appearing on behalf of the plaintiffs in error ; and the 
second and last, when Charles Yorke, as Attorney-General, took 
his place, was on the eighth of the following November. It was 
on thei first of these days that the memorable speech of Dunning 
against the validity of general warrants was delivered. Scarcely 
any idea of it, as a specimen of eloquence, can be formed from 
the brief heads of the several arguments, as they are jotted down 
in Burrow's Reports (p. 1758), but these are quite sufficient to 
convey a very high opinion of his ability as a reasoner, and it 



544 LORD ASHBURTON. 

is certain that lie appears to advantage even contrasted willi his 
opponent in the discussion, who was nevertheless a lawyer of 
acknowledged talent. From this time forward, no counsel in 
Westminster Hall was more anxiously sought after by clients 
than Dunning. He was soon afterwards chosen Recorder of 
Bristol; and scarcely two years and a half had elapsed, before 
he was selected (23rd December, 1767) to fill the office of So- 
licitor-General, then vacant by the promotion of Mr. Edward 
"Willes, the son of the former Chief Justice of the Common 
Pleas, to a seat on the bsnch. 

At the general election in 1768 (the same that first introduced 
Thurlow into Parliament), Dunning was returned by Lord Shel- 
burne as member for Calne, for which borough he continued to 
sit during the whole time he remained in the House of Com- 
mons, being re-chosen at the general elections of 1774 and 
1780. So long as he occupied the place of Solicitor-General, he 
does not appear, from any thing that remains on record, to have 
distinguished himself in any great degree as a parliamentary 
orator. Possibly he may have felt a more perfect freedom from 
restraint, when he was emancipated from the ties of office ; or 
it may be that the excitement of speaking in opposition called 
forth his powers more fully ; or lastly, the scantiness of the ma- 
terials from which the Parliamentary History of that period has 
been compiled, may be the cause that little or nothing is known 
to have been achieved by him within the walls of the House of 
Commons, during the first two years he sat there. His formal 
resignation of office took place some little time after the accession 
of Lord North to the premiership ; but he had refused to act, 
even before the total dissolution of the Duke of Grafton's admin- 
istration. His successor, Thurlow, was not appointed till 
March 1770 ; and Dunning, not having previously taken the 
rank of king's counsel, when he appeared in court on the first 
day of the following Easter term, had donned anew the stufT 
gown, and was fain to take up his old -place outside the bar. 
However, if he felt any annoyance from this change of position 
and costume, the courtesy of Lord Mansfield immediately relieved 
him from it; for, after he had taken his turn to move, his lord- 
ship informed him, that in consideration of the office he had 
held, and of his extensive practice, the Court intended thence- 



LOUD ASHBURTON. 545 

forward to call upon him for his motions immediately after the 
Serjeants and the Recorder of London. The two seniors of the 
outer barristers, Mr. Caldecott and Mr. Cox, expressed their 
concurrence in this arrangement, and indeed said they had had 
it in contemplation to propose something of the kind them- 
selves. 

What amount of business Dunning had by this time acquired 
may be seen by the constant recurrence of his name in the law 
reports of the period. His professional gains had come to 
average full ten thousand a year; and as he was frequently 
known to conduct causes gratuitously, when the interests of in- 
digent or oppressed parties were confided to him, we may easily 
conceive that he had quite as much upon his hands as he could 
contrive to attend to. By his own account he had even more. 
He one day told a friend, who was inquiring how he managed 
to get through the immense quantity of business that was thrust 
upon him, that some of it did itself, some he did, and the rest 
remained undone. However, if any of it really did fall into the 
last predicament, it was not because the fee was a small one, and 
that papers better indorsed claimed a precedence ; for Dunning 
has always been especially praised for the impartiality with 
which he bestowed the requisite attention on every case he un- 
dertook ; making not the slightest distinction (and some counsel 
are apt to make a great deal) between the most profitable and 
the least. Before the Courts in banc and at nisi prius he was 
equally, both as to practice and ability, the leading" common-law 
barrister of Westminster Hall ; and it was a question with many, 
in which situation of the two he appeared to the greatest advan- 
tage. He had all the legal learning and the sound logic which 
could qualify him for shining in the first ; and he wanted not 
the acuteness, the wit, or the eloquence, that may be displayed 
in the second. In legal argument, though his diction was more 
concise than in his addresses to juries, he seldom neglected a 
a single topic that could be adduced in his favour, and rarely 
sat down without- having completely exhausted his subject; 
leaving little else for the junior, who had to follow on the 
same side, but repetition. His fluency was almost unbounded. 
Such an accident as stopping short for want of words was un- 
known to him ; for if by chance it so happened that the appro- 



546 LORD ASHBURTON. 

priate expression did not suggest itself to his mind simultaneously 
with the idea, and he was for the moment at a loss, he had the 
art never to betray the embarrassment by hesitation, but to repeat 
part of the last sentence he had uttered, as if merely for the sake 
of impressing it with greater earnestness ; in the course of which 
process, brief as it was, he had full time to find the word he was 
in search of. With all this, his utterance was extremely rapid ; 
and yet it is a singular fact, that while many distinguished orators 
in the habit of speaking very slowly, Mansfield and Thurlow 
for instance, have been remarked to commit frequent inaccura- 
cies of grammar, the extreme volubility of Dunning scarcely 
ever betrayed him into any. His diction was for the most part 
neat and perspicuous ; and though occasionally a sentence might 
be lengthened out into parentheses one within the other, or so 
involved in quaint turns as to form a labyrinth whence none of 
his hearers could see the outlet, he had a peculiarly happy faci- 
lity in finding the close. In short, his periods might dangle in 
the air ever so long, but in the end were sure to fall to the 
ground, and fall too upon their legs. This kind of sentences 
occurred just often enough in. his discourse to give the whole 
the air of entire extemporization, which the generality of Dun- 
ning's auditors never doubted his speeches to be, and which in 
the common routine of cases they no doubt were. We need 
hardly say how important a quality is the appearance, of impro- 
visation in public speaking. 

To this sketch of his style of oratory, we will here add an 
extract from a character of Dunning, written by Sir William 
Jones. If any thing should appear exaggerated in the passage 
we mean to quote, (the account of his wit, for example,) it will 
be only necessary to recollect that Dunning had been the friend 
and patron of the author. 

" His language was always pure, always elegant, and the 
best words dropped easily from his lips into the best places, 
with a fluency at all times astonishing, and when he had perfect 
health, really melodious. His style of speaking consisted of 
all the turns, oppositions, and figures which the old rhetoricians 
taught, and which Cicero frequently practised, but which the 
austere and solemn spirit of Demosthenes refused to adopt from 
his first master, and seldom admitted into his orations, political 



LORD ASHBURTON. 547 

or forensic. Many at the bar and on the bench ttionght this a 
vitiated style ; but though dissatisfied as critics, yet, to the con- 
fusion of all criticism, they were transported as hearers. That 
faculty, however, in which no mortal ever surpassed him, and 
which all found irresistible, was his wit. This relieved the 
weary, calmed the resentful, and animated the drowsy; this 
drew smiles even from such as were the object of it, scattered 
flowers over a desert, and, like sunbeams sparkling on a lake, 
gave spirit and vivacity to the dullest and least interesting cause. 
Not tliat bis accomplishments as an advocate consisted princi- 
pally in volubility of speech or liveliness of raillery. He was 
endowed with an intellect sedate yet penetrating, chaste yet pro- 
found, subtle yet strong. His knowledge, too, was equal to his 
imagination, and his memory to his knowledge. He was no 
less deeply learned in the sublime principles of jurisprudence 
and the particular laws of his country, than accurately skilled in 
the minute but useful practice of our different courts. In the 
nice conduct of a complicated cause, no particle of evidence 
could, escape his vigilant attention, no shade of argument could 
elude his comprehensive reason : perhaps the vivacity of his 
imagination sometimes prompted him to sport where it would 
have been wiser to argue; and, perhaps, the exactness of his 
memory sometimes induced him to answer such remarks as 
hardly deserved notice, and to enlarge on small circumstances 
which added little to the weight of his argument; but those only 
who have experienced, can in any degree conceive, the difficulty 
of exerting all the mental faculties in one instant, when the 
least deliberation might lose the tide of action irrecoverably. 
The people seldom err in appreciating the merits of a speaker; 
and those clients who were too late to engage Dunning on their 
side never thought themselves secure of success, while those 
against whom he was engaged were always apprehensive of a 
defeat." 

To the highest flights of impassioned eloquence, such as 
the genius of Erskine revelled in, Dunning never soared, nor 
attempted to soar, either in Courts of Justice or in Parliament. 
He cannot therefore be ranked in the first class of orators ; but 
in the second he deserves a conspicuous place. Nothing gives 
us a stronger impression of the intrinsic merits of his speeches, 



548 LORD ASHBURTON. 

than the fact that the soundness of the arguments and the 
vivacity of the illustrations could convince and charm his 
audience, notwithstanding such disadvantages of action and de- 
livery, as certainly nothing but extreme excellence of matter 
could possibly overcome. We have already given some notion 
of his figure. Then his voice, notwithstanding what Sir Wil- 
liam Jones says of it, was peculiarly bad, and was moreover 
always obstructed by a kind of complaint he was continually 
labouring under, especially after he became rather advanced in 
life; which complaint, whether an affection of the lungs, or 
whatever else, resembled in its effects a perpetual cold. To 
such an extent did this latterly operate, that in the House of 
Commons, the members used to be forewarned of his intention 
to address them, by a much more disagreeable mode than was 
wont to be practised in the days of Elizabeth by old Sir Nicho- 
las Bacon, who, when he had got fat and pursy, used to announce 
the recovery of his breath, exhausted with ever so short a walk, 
simply by striking forcibly with his staff. The herald of an 
approaching speech from Dunning was a series of sonorous 
efforts to clear his throat, which, after all, he could not succeed 
in relieving from more than a small portion of the huskiness that 
choked it. So far, all his disadvantages were his misfortune, and 
not his fault. For his action in speaking he alone was to blame, 
except perhaps for one singularity in it (which might be a physi- 
cal defect, and probably was, since it increased as he grew 
older and of more feeble health), a constant shaking of the head, 
very similar to the motion of one afflicted with the palsy. But 
the mode in which he used to dispose of his hands was alto- 
gether his own. He constantly drew them up close together to 
the height of his breast, whereupon resting his wrists, he kept 
up a continual paddliug with his outspread palms, moving them 
with a rapidity corresponding to the motion of his tongue. We 
have heard it said by those who have seen him while thus 
employed, that his whole appearance reminded them of some 
particular species of flat fish (we believe the maid), which may 
occasionally be seen hanging alive outside the fishmongers' 
shops in London, the body wholly motionless, but certain short 
fins in front vibrating up and down unceasingly. To others the 
exhibition suggested the idea of a kangaroo seated on its hind 



LORD ASHBURTON. 549 

legs, and agitating its fore paws in the manner that animal is 
wont to do. All, however, add, that it was only at the first 
glance they were susceptible of any thing about him approach- 
ing to the ridiculous. After listening to him for a very few 
minutes, the attention became wholly engrossed by what he 
said, and all consciousness of his awkward gesticulations w^as 
entirely absorbed in the interest aroused by his discourse. This, 
as we have already declared, we consider the most satisfactory 
testimony to the greatness of his oratorical powers. 

In Court, Dunning was too often in the habit of displaying 
that sort of overbearing and arrogant manner into which suc- 
cessful counsel are so apt to be betrayed, a fault that once sub- 
jected him to a punning rebuke from the witty Solicitor-General, 
Lee, best known among his professional brethren by the familiar 
appellation of Jack Lee. Dunning was relating to him how he 
had just completed the purchase of some capital manors in his 
native country. " Ay, in Devonshire," said Lee ; " but what a 
pity it is you have no good manners in Westminster Hall." 
Sometimes he was touched upon a more tender point, one, in- 
deed, on which he was peculiarly alive to the flattering sug- 
gestions of his own vanity ; and this, incredible as it may appear, 
was the attraction of his person, of which he entertained any 
thing but an unfavourable opinion. 7'he fact may justify, if 
any thing ever could, the exclamation, " ou Diahle la vanite 
va-t-elle se nicher.'^^ but so it was, that no handsome young 
coxcomb of nineteen was ever more proud of his beauty, and 
no young lady of the same age more fond of admiring the re- 
flection of her own features in the looking-glass, than was 
Dunning. He was particularly fond of having it believed that 
he was a favourite with the sex, and that he owed their good 
graces, not to the capacity of his purse, (which occasionally did 
in fact put him upon a tolerably good footing with the venal 
fair), but solely to the irresistible charms of his face and figure. 
Many of our readers have probably heard it related, how he 
was endeavouring one day to persuade some of his friends that 
a celebrated Cyprian, then lately dead, had entertained so lively 
an aff'ection for him, as to have been holding a letter of his in 
her hand at the moment she expired ; and how Foote, who was 
present, accounted for the circumstance by specifying the pe- 



550 LORD ASIIBURTON. 

culiar act and position in which, as he would have it, she gave 
up the ghost. We do not care to particularize the details of 
this anecdote more minutely. It was of certain rebuffs he is 
reported to have encountered in Court, that we were about to 
tell ; and the following may serve for a sample of the conse- 
quences he brought upon himself by an unsuccessful attempt at 
browbeating a witness. 

It was in a crim. con. case, where he was retained for the 
defendant. To prove the fact of adultery, the lady's maid had 
been called, and had deposed to the having seen the defendant in 
bed with her mistress. When it came to Dunning's turn to 
begin the cross-examination, he desired the witness, in a stern 
tone, to take off her bonnet, that he might have a full view of 
her face, and convince himself by her looks whether she was 
speaking the truth. The girl happened to be an abigail of that 
description which the inimitable Moliere has so well portrayed 
in the persons of his Lisettes and Toinettes, so it may be ima- 
gined she was not easily to be abashed ; and having a pretty 
face to show, she felt not the slightest objection that bench, bar, 
attorneys, jurors, and by-standers should command a full view 
of it. When the bonnet was removed. Dunning began, and 
endeavoured to shake her testimony as to the identity of her 
mistress's bedfellow: — 

" Was she sure it was not her master she had seen in that 
conjugal capacity ?" 

" Perfectly sure." 

" What ! did she pretend to say she could be certain, when 
the head only appeared above the bed-clothes, and that enveloped 
in a nightcap ?" 

" Quite certain." 

" You have often found occasion then to see your master in 
his nightcap?" continued the questioner. 

" Yes, very frequently." 

" Now, young woman, I ask you upon your oath, does not 
your master occasionally go to bed with you ?" 

" Oh !" answered Toinette, nothing daunted, *' that trial does 
not come on to-day, Mr. Slabberchops." 

A. loud shout of laughter all around achieved the discomfiture 
of Dunning, who had nothing for it but to adjust his bands, 



LORD ASHBURTON. 551 

change the position of his wig, and look very foohsh. Lord 
Mansfield leant back on the bench in an untrollable burst of 
mirth, and he had not more than half recovered the judicial 
gravity of tone, when he asked whether Mr. Dunning chose to 
put any more questions. A short negative was the answer. 

Another instance has been recorded of a shock to his personal 
vanity, which was perhaps the more effective, that it was given 
apparently without intention, and in perfect simplicity of heart. 
An old woman, a witness in an assault case, administered this 
bitter dose. Here, too, his object was to invalidate the evidence 
as to the identity of a party ; but here he went about it with 
such gentleness. Something like the following dialogue took 
place between them : — 

"Pray, my good woman," he said, "are you very well ac- 
quainted with this person?" 

" Oh yes, your worship, very well indeed." 

" Come now, what sized man is he ? Is he short or tall ?" 

"Quite short and stumpy. Sir; almost as small as your 
honour." 

" Humph ! What kind of nose has he ?" 

"What I should call a snubby nose. Sir; much such a one, 
just for all the world, as your own, Sir, only not quite so cocked 
up like." 

"Urn. His eyes?" 

" Why he has a kind of a cast in them, Sir ; a sort of squint. 
They are very like your honour's eyes." 

" Psha ! You may go down, woman." 

Those personal graces, whereof Dunning was so proud, were 
once exhibited before a very dignified and brilliant concourse of 
spectators, in a manner with which we should think the pos- 
sessor of them must have had small reason to be pleased. He 
took it into his head, it seems, to employ the leisure of a long 
vacation in an expedition to Berlin, and accordingly provided 
himself with the necessary introductions for appearing with 
advantage at the court of Frederick the Great. His companion 
in this expedition was Colonel Barre, his colleague in the repre- 
sentation of the borough of Calne. Both were of course pre- 
sented to his Majesty by their proper titles ; and the military 
monarch, unconscious of the meaning of the word Solicitor, op 



552 LORD ASHBURTON. 

thinking, perhaps, that Solicitor-General was English for major 
or lieutenant-general, gave the distinguished British warriors, as 
he took them both to be, a highly flattering reception. Of 
course, to such guests no species of entertainment could possi- 
bly give more gratification than a review ; and to a review they 
were invited, a notification being sent them at the same time 
that they need be under no anxiety as to their equipage or 
appointments, as the royal stables would furnish them the means 
of appearing on the ground in a manner suitable to their rank. 
To keep up the proper dignity of this rank, Dunning attired 
himself on the appointed morning in full court suit, bag wig, 
dress sword, and buckles of extreme resplendency both on shoes 
and garters. When the time came for setting forward, he de- 
scended to the door of his hotel, prepared to assume a becoming 
attitude in the carriage he expected to find in attendance ; but 
what was his astonishment and his dismay, when, instead of 
landau, chariot, or barouche, he beheld two orderly dragoons 
holding by the bridles as many snorting chargers, caparisoned 
for the field, and pawing the ground with impatience to start for 
the scene of action ! We may easily believe Mr. Solicitor's 
heart sank within him at this sight. But time pressed : Colonel 
Barre was already in the act of mounting ; the king and his tall 
grenadiers could not be kept waiting, and there was no alterna- 
tive but to trust his person to the precarious mode of conveyance 
at hand. It is the mark of a superior mind, they say, to be 
capable of framing sudden resolves for unexpected emergencies : 
so, seeing there was no help for it, he, after some little delay, 
manfully made up his mind for the worst ; and with the assist- 
ance of some strenuous legging-up, as it is called, from the 
dragoons, he at length found himself ensconced in the hollow of 
a demi-pique saddle. Fortunately for him, the topling cantle 
behind, and the equally lofty pommel, to say nothing of the 
holsters, in front, between which his diminutive person was 
more than half buried, wedged him in sufficiently close to secure 
him from any immediate apprehension of encountering the hard 
fate that befel Judge Twisden of yore. But against the destiny 
of John Gilpin these were no protection ; and the good citizens 
of Berlin were indulged that morning with much such a spec- 
tacle as was formerly enjoyed by those who dwell between 



LORD ASHBURTON. 553 

Edmonton and Ware. The mettlesome steed was quicker than 
his royal master had been, in apprehending the unmilitary cha- 
racter of the rider who now bestrode him ; and taking his own 
way without restraint, went curveting and prancing along, till 
he arrived at his wonted station in the field, near the person of 
his Majesty. Dunning was by this time convinced that it was 
a much easier task to jockey juries than chargers, and that 
however skilful he might have approved himself in the first of 
these offices, he had no vocation for the last; wherefore, wisely 
resolving to desist, while it was yet time, from such adventurous 
pursuits, he besought his friend Barre, or some other benevolent 
person, to rescue him at once from his perilous situation. When 
the king and the officers about him had done laughing at the 
ludicrous exhibition, his majesty very naturally inquired how it 
came to pass that an English general could be no better eques- 
trian than our dismounted hero ; and he then, for the first time, 
learnt that we islanders have generals in Westminster Hall, as 
well as at the Horse Guards. 

The length to which we have unwittingly extended the rela- 
tion of these casual mishaps, may serve for an illustration of 
the well-known truth, that misfortunes, whether severe or tri- 
vial, in the history of nations or of individuals, generally furnish 
more matter for the recollection than uninterrupted prosperity. 
It will cost us comparatively but very few words, to commemo- 
rate the uniformly dignified course held by Dunning as a mem- 
ber of the House of Commons. With the exception of Lord 
Mansfield, before he was called to the bench, we know of no 
lawyer of the last century who commanded so much respect 
and attention in that assembly. On all the legal and constitu- 
tional questions (and they were neither few nor unimportant) 
that came under the consideration of the House, while he had a 
seat in it, his professional character naturally imparted the 
greatest weight to his opinions. But it was not on these subjects 
alone that he was listened to with deference. In discussions on 
matters of domestic or foreign policy, he approved himself 
equally capable of conceiving luminous views, and of support- 
ing them by forcible arguments; nor were there many states- 
men by profession, devoting their whole time and care to the 
consideration of those matters, whose notions upon them were 

86 



554 LORD ASHBURTON. 

heard more attentively, or looked up to as of higher authority. 
Sitting in Parliament, as he always did, in the character of a 
representative for a borough of Lord Shelburne's, he of course 
attached himself to the party, or rather the section of a party, 
of which that nobleman was considered the chief; in other 
words, he professed himself generally a Whig, but took service 
under this one in particular of the several banners that were 
unfurled in opposition to the Tory government. By his own 
account, however, which there is not the shghtest ground for 
suspecting to be other than strictly true, his connection with his 
immediate leader had nothing of the servile character that some- 
limes marks such alliances. In vindicating his colleague, 
Colonel Barre, from the charge which was made against him 
in the warm debates of 1780, of being a dependant on Lord 
Shelburne, he took occasion to disclaim, both for the colonel and 
himself, any less honourable relation than such as was a conse- 
quence of his lordship's friendship and intimacy, which both 
equally enjoyed. 

"If that intimacy and friendship," he said, "be a state of 
dependence, I am happy in classing myself among that noble 
lord's dependants. I will assure those, who have alluded to 
what they call dependence, that it is a state of dependence 
accompanied with perfect freedom. It is true my honourable 
friend has been honoured with the noble lord's friendship for 
upwards of twenty years ; but I think I know the frame of 
mind and disposition of my honourable friend too well to be 
persuaded that he would purchase any man's intimacy upon 
any terms short of perfect equality and mutual confidence ; and 
I think I may likewise add, that if any person should attempt 
to purchase the noble lord's friendship by mean or improper 
concessions, there is not a man on earth who would more readily 
see through or despise it." 

Many of Dunning's speeches in the House of Commons are 
reported with more or less fullness in the ParUamentary Debates ; 
but it would scarcely be fair to form an estimate of his ability as 
a parliamentary orator, solely from the examples there preserved. 
One of his finest speeches, and, if we are to believe contempo- 
rary opinion, one of the finest specimens of argumentative elo- 
quence ever delivered in the House, was his defence of the 



LORD ASHBURTON. 555 

remonstrance against the conduct of ministers, made by the City 
of London, just before he had formally resigned the office of 
Solicitor-General : yet of this no record whatever remains. As 
an acknowledgment of their admiration and approval of his ex- 
ertions on this occasion, the City voted him the freedom of the 
corporation. Another of his speeches made about a year after- 
wards, in which the same body had reason to feel deeply in- 
terested, was that against the motion, in the case of Crosby, that 
the Lord Mayor and one of the Aldermen should be sent to the 
Tower, for having obstructed the execution of the speaker's 
warrant. One of the principal arguments he employed against 
the right of the House to punish the breach of privilege, would 
probably have found more favour at present than it did at the 
time. This was neither more nor less than a bold denial of the 
assertion that the voice of the House of Commons was the voice 
of the people of England — a specious fallacy, which the enu- 
meration of a few facts concerning the representation enabled 
him to expose as such. 

As a leading member of the opposition to Lord North's min- 
istry, it is needless to say that Dunning denied the justice and 
the policy of the war with America. Indeed, some of his hap- 
piest efforts as a political orator were called forth by the discus- 
sions upon this subject. Nevertheless, towards the conclusion 
of the hostilities, in 1782, when all chance of ultimate success 
against the colonists had come to be considered hopeless, he con- 
sidered himself justified by the usual practice of parliamentary 
tactics, in protesting against the recognition of the independence 
of the United States ; the measure being proposed while Lord 
North was still clinging, with unabated tenacity, to his seat on 
the Treasury bench. He might have been the more anxious 
upon this occasion to adhere strictly to the prudent maxim of 
not throwing a single chance away, since the object he was 
then pursuing, the dislodgement, namely, of the imperturbable 
premier from his post, had been two years before apparently 
within his reach, and had eluded his grasp at the very moment 
when it seemed as if nothing within the range of probability 
could wrest it from him. It was in the session of 1780 that he 
achieved the signal triumph over Ministers, which had been 



556 LORD ASHEURTON. 

looked upon as so certain a prognostic of their total defeat. The 
opposition had been already gaining ground for some time pre- 
vious, in their endeavours to bring about an economical reform ; 
they had just procured the abolition of the Board of Trade and 
Plantations, and they had forced from Lord North a bill for the 
revision and better regulation of the public accounts. Follow- 
ing up this incipient success, Dunning, on the sixth of April, 
brought before the House his memorable motion, that the influ- 
ence of the crown had increased, was increasing, and ought to 
be diminished; and after an animated debate, during which no 
member on either side played a more prominent part than him- 
self, he had the satisfaction of carrying it by a majority of 
eighteen. With this motion had been coupled a supplementary 
one, asserting the competency of the House to correct abuses in 
the expenditure of every branch of the public revenue, including 
that of the civil list ; and within a few days he brought forward 
another proposition, to the effect that, in order to preserve the 
purity and independence of Parliament, exact returns should be 
made at the commencement of every session, specifying what 
sums, in the shape of salaries or pensions, were received, and 
on what account, by any member of the House of Commons. 
It may appear at first sight that this was merely a corollary of 
the foregoing resolution, and must have been supported by all 
who had lent their votes to it. Here, however, the majority 
dwindled down from eighteen to two, so that Dunning and his 
party had little more to boast of than a drawn batde. Their 
next engagement ended in their utter defeat. On the twenty- 
fourth of the same month. Dunning, still acting as general, 
took the field with a proposal for an address to the King, pray- 
ing against a dissolution or even a prorogation of parliament, 
until such tim,e as the grievances complained of in the numerous 
petitions before the house were redressed. But Lord North had 
now marshalled all his forces for the encounter, and had more- 
over recruited them with a tolerable number of deserters from 
the opposite camp ; the result of which was, that a majority of 
fifty-one proclaimed him the conqueror. Dunning afterwards 
returned to the charge, with a motion for the confirmation of a 
vote passed by the whole House in committee, to prevent certain 



LORD ASHBURTON. 557 

ofRcers of the royal household from sitting in Parliament ; but 
the fortune of war still went against him, and his discomfiture 
was completed by a majority of forty-three on the other side. 

The spring of 1782, however, opened a brighter prospect for 
the Whigs. Notwithstanding the intelligence of Lord Cornwal- 
iis's surrender at York Town, Lord North had contrived to open 
the session by carrying the address with a majority of eighty- 
nine ; but this was a short-lived success. The motion brought 
forward by the opposition on the fifteenth of March following, 
that the House had no further confidence in ministers, was nega- 
tived by a majority of nine only ; and on the twentieth, the 
premier interrupted the discussion on a motion of similar import, 
by acquainting the house that he had resigned. Place, power, 
and profit, were now at the disposal of the Whigs ; and what a 
scramble there was among them for the spoil of their adversaries, 
needs not to be here commemorated. As it was understood that 
Lord Shelburne, though nominally only one of the Secretaries 
of State in the new administration, was to have an equal degree 
of power with the Marquis of Rockingham, who became first 
Lord of the Treasury, Dunning had the start of his competitors 
in the race for preferment, and he straightway laid his clutch 
upon a coronet. His patent of peerage bore the dale of April 
8th, 1782, the title being Lord Ashburton, of Ashburton, in the 
county of Devon. If we are to believe the assertion of Sir 
Nathaniel Wraxall (not always a very safe authority), the nego- 
tiation with the king for this dignity was made by Lord Shel- 
burne without the privity of his colleague, who had no notice of 
any intention to confer it till the new peer kissed hands upon 
his creation; and, in order to put himself on a level with the 
Secretary of State, the Marquis of Rockingham demanded that 
Sir Fletcher Norton should, at his recommendation, be forthwith, 
and without the delay of the usual forms, advanced to the same 
rank, which demand produced his immediate elevation to the 
barony of Grantley. 

In less than a week after this accession of rank (13th April) 
Dunning became Chancellor of the Duchy of Lancaster, thereby 
securing to himself a seat in the cabinet. Had he chosen to stop 
short here, we should have little or nothing to animadvert upon in 
the use he made of his influence as a member of the new admin- 



558 LORD ASHBURTON. 

istration. It is true the suppression of this very post had been 
over and over again recommended by himself, as well as by all 
those who had advocated Burke's system of economical reform ; 
and indeed the whole of the appointments connected with the 
Duchy had been denounced by them, as useless and burthensome 
to the nation. However, we all know by experience the differ- 
ence which, perhaps in some degree necessarily, exists between 
the line of conduct adopted by a party when it is in power, and 
the course it recommends to its adversaries when it is in oppo- 
sition. We might therefore make allowances for the Rocking- 
ham cabinet, so far as regards their declining to suppress these 
places, at least immediately after their accession to office ; and 
since, so long as the places remained, they must be filled, it 
would be easy to justify Dunning for appropriating one of them 
to himself. But this did not satisfy him. No sooner had the 
death of the Marquis of Rockingham secured to Lord Shelburne 
the post of premier, than he put in his claim for a pension, and 
saddled the nation with a burden of 4000/. a year. Now, 
against the manifold abuses of the pension list no one had de- 
claimed more strenuously than himself. The subject had not 
very long before been brought under the consideration of Parlia- 
ment and of the public ; quite as much warm and even vehement 
discussion had been excited by it as has been done of late (by 
the bye with about as much effect) ; and in scarcely any other 
debates had Dunning taken a more prominent part, bringing ar- 
gument and satire, and every other engine of eloquence he had 
at command, to bear against the misappropriation of the public 
money. He now thought fit to give the lie to all his former 
professions. And what excuse had he to urge for so glaring a 
want of consistency ? Was he needy ; in absolute want of 
money ? He had realized an ample fortune. Had he made 
any sacrifices to the state, that could authorize him to claim a 
compensation from its purse ? He had but newly possessed 
himself of a lucrative public appointment, and that a sinecure. 
Put the case as we will, we can say no better of it than that, in 
grasping at this pension, he did that which was an act of mean- 
ness as a private man, and of profligacy as a pubhc one. This 
may appear too severe a judgment to those (and we know them 
to be a very numerous class) who are accustomed to consider 



LORD ASHBURTON. 559 

that faults of this kind, which so many have committed and do 
still continue to commit, must needs be very venial backslidings. 
If this principle were to be generally applied, there certainly 
would be very few crimes, of however deep a dye, which might 
not easily be softened down into exusable errors. For it is un- 
fortunately but too true, that if precedents were allowed to be as 
good authority for dishonest and unworthy acts as they are for 
legal acts, a goodly host of them might be produced to justify 
almost every enormity that ever has or can be perpetrated. No- 
body, however, thinks in private life of justifying the commission 
of a crime by the frequency of its occurrence, and we search in 
vain for a reason why that which is not admitted to be an excuse, 
nor even a palliation, in ordinary delinquencies, should be so 
held in those of public men : why, in short, there should be one 
measure for private and another for political morality. What is 
right and what is wrong must be so in both, intrinsically and 
absolutely. To discriminate the right from the wrong is a task 
within the capacity of every one ; so ample are the rules by 
which the judgment is guided in the process. By those rules 
must Dunning's conduct in this affair be tried ; and, being so 
tried, we repeat without hesitation, that it will be found such as 
we have just designated it. 

To comment upon this unworthy termination of a political 
career otherwise honourable, is no very agreeable duty ; and we 
turn from it with pleasure to mention a few further particulars 
of Dunning's private life. While he remained a bachelor, which 
was till he was very near fifty years of age, though his profes- 
sional engagements engrossed too much of his time to leave him 
any great deal of leisure at his command, yet the little he could 
procure he contrived to turn to such account as made it equiva- 
lent to a larger quantity. During his intervals of relaxation, he 
mixed freely with the world, and had access to the best society 
of London. Besides the acquaintances iiis standing as a leading 
member of the whig party procured him, he was intimate with 
some of the principal literary characters of his day. He was a 
member of the Literary Club, and occasionally gratified John- 
son by becoming one of his listeners at the weekly meetings. 
When Boswell once related to his oracle, how Dunning had 



560 LORD ASHBURTON. 

professed to take a pleasure in hearing the words of wisdom 
that used to fall from him, and, in communicating the intelli- 
gence, modestly insinuated that from such a man this was a flat- 
tering compliment, the Doctor complacently observed : " Yes, 
sir, this is a great deal from him. Here is a man willing to 
listen, to whom the world is listening all the rest of the year." 
The same worthy gossip who records this, has mentioned John- 
son's taking notice that Dunning had not entirely freed himself 
from all remains of provincial accent. *' Sir," he once said, 
*' when people watch me narrowly, and I do not watch myself, 
they will find me out to be of a particular county ; in the same 
manner Dunning may be found out to be a Devonshire man." 

We have already made mention of Dunning's early intimacy 
with Home Tooke. This philological politician, in 1778, 
addressed to him his letter on the English particle, which he 
afterwards expanded into the larger work known by the title 
of Ertsa Titsposvta, or the Diversions of Purley. With some other 
men of letters, who were also men of pleasure, he lived at differ- 
ent times on equally intimate terms. Such, for instance, were 
Samuel Foote and Arthur Murphy, the last a member of his 
own profession, and at one time not altogether unsuccessful at 
the bar, though, upon the whole, better known in the theatrical 
green rooms than in Westminster Hall. It might be to his inti- 
macy with Foote that Dunning owed a kind of antipathy to Gar- 
rick, who was seldom or never on the best of terms with the 
rival manager. It is reported by Mrs. Serres, in the life of her 
uncle Dr. Wilmot, that he was one evening sitting with the Doc- 
tor at Nando's, when the great actor came in, and, seating him- 
self in an adjoining box, called for his wine in a loud and 
pompous tone. Hereupon the Doctor observed, " The vaga- 
bond smells of his trade." — "No, d — him," (we quote lite- 
rally) said Dunning, "he stinks of his king of shreds and 
patches." — "True," rejoined the other, " he is the prince of 
pismires." All this was overheard by Garrick, as probably the 
speakers intended it should be ; and he took his revenge by- ask- 
ing the waiter " who were those fellows in the next box?" Ac- 
cording to our authority, however. Dr. Wilmot here introduced 
such a cutting observation (though we confess we are dull enough 



LORD ASHBURTON. 561 

not to perceive the point of it) that the discomfited hero of the 
sock and buskin immediately "sneaked out of the room," and 
made his appearance there no more that evening. 

While Dunning's practice was not so extensive as always to 
occupy his evenings, he used to be in the habit of associating 
with such companions as these at Nando's or George's, or the 
Grecian, whither he generally resorted, after the business of the 
day was over, to indulge, like North, in a " petit supper and a 
bottle." Afterwards, when his increasing professional engage- 
ments, and his duties as a member of the House of Commons, 
left him little or no opportunity for this kind of relaxation, he 
used to make up a party of his friends, and carry them down 
with him on Saturday to his house at Fulham, whence they 
would all return to town together at an early hour on Monday 
morning. His style of living was liberal, and his entertain- 
ments were such that those who had once partaken of them 
generally cared not how soon they were invited to do so again. 
We never, indeed, heard of any one to whom his hospitality 
gave dissatisfaction, excepting his mother. The old lady was a 
thrifty housewife, and had trained up her boy John in the ways 
of strict frugahty, a fact whereof some amusing illustrations are 
still traditionally preserved among the townspeople of Ashbur- 
ton. Although, therefore, she knew him to be in the receipt of 
some 10,000/. a year or thereabouts, she fully expected that he 
would still adhere to the good principles of economy her mater- 
nal solicitude had instilled into him when a youth. What then 
was her amazement and indignation, on making a visit to Lon- 
don, and finding herself, for the first time, seated at the head of 
her son's table, with a party of his friends around, to behold 
dish following dish, course succeeding course, and costly wines 
flowing in abundance, to find plate, attendants, in short every 
essential of a well ordered dinner party, provided with a profu- 
sion that appeared to her the last extreme of prodigality. If her 
son expected to be complimented by her on his style of living, 
he was grievously disappointed ; for the first opportunity she 
could find of speaking with him in private, she employed in 
giving a full vent to her displeasure. It was to no purpose that 
he assured her his income was fully adequate to the maintenance 
of such a table. She would believe no such thing. Two tureens 



562 LORD ASHBURTON. 

of soup, and two dishes of fish, for one dinner, she said, would 
in time be the ruin of him, or of any one ; no fortune could sup- 
port such shameful extravagance ; and if he persisted in such 
doings, she declared she could not find in her heart to slay and 
witness them. 

We know not whether, as the wife of an attorney, she would 
have been equally disposed to disapprove of what might appear 
another scandalous instance of her son's inattention to his own 
pecuniary interests, — his refusal to concern himself with an ac- 
tion at law for the redress of an injury done to his property at 
Fulham. A neighbouring proprietor had cut down a tree which 
had its root in Dunning's premises, and the lawyer's gardener 
had boasted of the ample retribution that his master, above all 
other men, could and would take for so barefaced a violation of 
his rights. To the astonishment, however, of this zealous ser- 
vant, his master flatly refused to take any share in the manage- 
ment of the law-suit, if law-suit there must be. He did not, it 
is true, go quite so far as another eminent lawyer, who used fre- 
quently to declare that if any one should set up a claim to the 
coat on his back, he would not only immediately give it upj^but 
would surrender the waistcoat with it as a compensation for any 
other contingent claim, rather than contest the matter in an ac- 
tion. But if it became absolutely incumbent on him to seek re- 
dress from the Courts, he was at least wise enough not to place 
himself in the predicament of those who are proverbially admit- 
ted to have fools for their clients ; that is, who conduct their 
own causes. 

The satisfaction which Dunning's father naturally felt at his 
son's advancement, was not diminished even by the drawbacks 
that threw such a weight upon his wife's spirits. The fondest 
hopes of his parental ambition had been fulfilled ; and we much 
doubt whether the son himself received half so much gratifica- 
tion from the wealth and the fame he was daily acquiring, as did 
old Mr. Dunning, the attorney of Ashburton. It is told of him, 
that during one of his visits to town, he called at the treasurer's 
office in one of the Inns of Court, to sign the usual bond for 
some young friend of his who was just entering into commons 
there ; and the sub-treasurer, on seeing his name, asked him if 
he was any relation to the great Mr. Dunning. The glow of 



LORD ASHBURTON. 563 

honest pride instantly suffused the cheek of the old man, and 
drawing himself up to his full height, he answered with a slight 
faltering of his voice, " I am John Dunning's father, Sir." 

The elder Dunning lived till the beginning of December, 
1780. Not long before this, his son, being then between forty- 
eight and forty-nine years of age, bethought him, no doubt, that 
if he intended to provide himself with a wife he had not much 
time to lose, and accordingly married (March 31st, 1780), Miss 
Elizabeth Baring, the daughter of Mr. John Baring of Exeter, 
who was or had been a retail trader, though his son then repre- 
sented the county of Devon in ParUament. By this lady he had 
two boys : John, born in October, 1781, and Richard Barre in 
September the year following ; but the eldest of them only 
lived to the age of eighteen months. The death of this son 
(April, 1783) is said to have had a very material effect upon the 
health of Dunning, who was devotedly attached to both his 
children ; at all events, the complication of maladies of which 
the seeds may be said to have formed part of his physical 
organization, and which shortly afterwards brought him to the 
grave, appeared to acquire new strength from the shock of this 
domestic misfortune. He had been in the habit of repairing the 
wear and tear of his constitution by an annual residence of as 
many weeks as he could spare at Teignmouth, which was his 
favourite watering-place ; and there, by the way, the house he 
used to inhabit (now tenanted by a chemist and druggist), is still 
shown as one of the lions of the town. The illness under 
which he now laboured was beyond the reach of art, and he 
was advised as a last resource to try once more the effect of the 
sea breezes of his native country. Travelling accordingly by 
easy stages, on his first day's journey from London he went no 
farther than Bagshot. By a singular coincidence, it happened 
that Wallace, the attorney-general, an almost equally celebrated 
lawyer, once his competitor in Westminster Hall, and his oppo- 
nent in the House of Commons, but then, like himself, posting 
rapidly towards the grave, was on his way to London for the 
benefit of the best medical advice, and had just alighted at the 
same inn. Their meeting was, it may well be supposed, a 
melancholy one ; but they passed the evening together with such 
an approach towards conviviality as the state of their health 



564 LORD ASHBURTON. 

would allow, and then separated to meet no more. Wallace 
pursued his route to London, where he lingered on till the fol- 
lowing November : Dunning repaired to Exmouth, and there 
on the eighteenth of August (1783) he terminated his mortal 
career. 

His remains were interred in the parish church of Ashburton, 
where a handsome monument has been erected to his memory. 
The title devolved upon his infant son, together with a very 
considerable landed property in the neighbourhood of Ashbur- 
ton. Spitchweek, the seat, which is only four miles from the 
town, on the banks of the river Dart, and near the borders of 
Dartmoor, had been purchased by Dunning, on very advantage- 
ous terms, of the Cresswell family, together with Bagter (a 
manor of itself, within the manor and parish of Ilsington, near 
Ashburton), once the inheritance of the Fords, and the birth 
place of the dramatic poet of that name. We believe a con- 
siderable portion of this estate will revert in about twelve years 
hence to the possession of the Cresswells. Besides all this 
landed property, Lord Ashburton left about a hundred and 
eighty thousand pounds in money. The title is now extinct, 
the successor of the first lord having died some years since 
without heirs. 

It is said that the attorney who had the arrangement of Dun- 
ning's papers immediately after his death, discovered among 
them a proof-sheet of Junius's Letters, corrected in his hand- 
writing ; and Dr. Tucker, of Ashburton, has put forth a pam- 
phlet with the intent to prove that he was actually the author 
of them. Mrs. Olivia Wilmot Serres, too, in the publication 
wherein she claims this distinction for her uncle, Dr. Wilmot, 
says she has no doubt, from letters found among his papers, that 
both Dunning and Lord Shelburne were in the secret of the 
authorship at the time of the publication. This last assertion 
is certainly more feasible than the hypothesis of Dr. Tucker, 
and is quite compatible with an averment often made by the late 
Lord Lansdowne (Shelburne), that Dunning wrote not one 
word of the letters ; but the authenticity of her statement must 
of course depend upon the fact of Dr. Wilmot's being the real 
Junius ; a fact which the public, we believe, have somewhat un- 
gallantly refused to take upon trust from his niece. We are not 



LORD ASHBURTON. 565 

about to plunge into the depths of this intricate controversy ; 
nor indeed do we consider it at all necessary, in order to show- 
that Dunning was not the man. That Junius cannot have been 
a professional lawyer appears, as Mr. Butler has very aptly 
remarked, from the inaccuracy of his legal expressions ; as, for 
instance, where he says that "the King, Lords, and Commons 
are the trustees, not the owners of the estate ; the fee simple is 
in the people ;" whereas in all trusts of the inheritance, the fee 
simple is in the trustees. To this we shall only add that Junius's 
first letter is dated January 21st, 1769, that Dunning was at that 
time Solicitor-General, and that he did not resign his office till 
more than a year afterwards. 

Another work of very minor importance has been supposed 
to be in part the composition of Dunning; an octavo pam- 
phlet of fifty-three pages, dated April, 1764, bearing the title 
of " A Letter to the Proprietors of East India Stock, on the 
subject of Lord Clive's Jaghire." There is not, however, the 
shadow of an authority for attributing any share in this produc- 
tion to him ; though it is not difficult to conceive how the notion 
may have first arisen, from his being avowedly the writer of 
another pamphlet on East India affairs. That pamphlet is, so 
far as we know, the only authenticated work of his pen. If he 
ever had the taste, he never could spare the time for literary 
composition ; and accordingly his fame, unsupported by durable 
monuments of genius, is of that perishable character which we 
represented at the outset as the general lot of the most eminent 
members of the English Bar. 



THE END. 



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